Jenkins v State of Tasmania
[2012] TASSC 22
•15 May 2012
[2012] TASSC 22
COURT: SUPREME COURT OF TASMANIA
CITATION: Jenkins v State of Tasmania [2012] TASSC 22
PARTIES: JENKINS, Stewart
v
TASMANIA, State of
FILE NO/S: 627/2011
JUDGMENT
APPEALED FROM: J v Department of Police & Emergency Management (Ref No 533/2010) [2011] TASWRCT 26
DELIVERED ON: 15 May 2012
DELIVERED AT: Hobart
HEARING DATE: 16 November 2011
JUDGMENT OF: Tennent J
CATCHWORDS:
Workers Compensation – Proceedings to obtain compensation – Appeals, judicial review and stated cases – Nature and scope of appeal – Appeal relating to point of law – What amounts to point of law.
Hanlon v McKay Investments Pty Ltd (2001) 10 Tas R 247, followed.
Workers Rehabilitation and Compensation Act 1988 (Tas), s63.
Aust Dig Workers Compensation [339]
Workers Compensation – Entitlement to compensation – Causal relation between injury and incapacity or death – New intervening force – Medical treatment – Whether impairment "resulted from" accident injury.
Jones v Devonfield Enterprises (1995) 5 Tas R 345, referred to.
Workers Rehabilitation and Compensation Act 1988 (Tas), ss71.
Aust Dig Workers Compensation [87]
Workers Compensation – Entitlement to compensation – Causal relation between injury and incapacity or death – New intervening force – Medical treatment – Meaning of "fracture" and "multilevel structural compromise" – Interpretation of Tasmanian Workers Compensation Guidelines for the Assessment of Permanent Impairment under the Workers Rehabilitation and Compensation Act 1988 (WorkCover Tasmania Guidelines).
Dennis John Whitaker v Comcare [1998] FCA 1099; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Nekon Pty Ltd v Commissioner of State Revenue [2010] TASSC 23, referred to.
Workers Rehabilitation and Compensation Act 1988 (Tas), s72.
Tasmanian Workers Compensation Guidelines for the Assessment of Permanent Impairment under the Workers Rehabilitation and Compensation Act 1988 (WorkCover Tasmania Guidelines).
Aust Dig Workers Compensation [87]
REPRESENTATION:
Counsel:
Appellant: S Taglieri
Respondent: P Turner
Solicitors:
Appellant: Hilliard & Associates
Respondent: Director of Public Prosecutions
Judgment Number: [2012] TASSC 22
Number of paragraphs: 61
Serial No 22/2012
File No 627/2011
STEWART JENKINS v STATE OF TASMANIA
REASONS FOR JUDGMENT TENNENT J
15 May 2012
On 29 June 2011, Commissioner Chandler of the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") delivered a decision in respect of a referral to him pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s71, by Stewart Jenkins ("the appellant"). The appellant had been a volunteer with the State Emergency Service. For the purpose of the Act, it was accepted he was a worker engaged by the Crown. The appellant suffered an injury to his neck in a motor vehicle accident when responding to an emergency call. There was no dispute that the injury he suffered in the accident was a compensable injury. He, however, sought compensation for permanent impairment pursuant to the Act, s71.
The Act, s71, relevantly provided:
"(1) In addition to any other compensation payable under this Act, the amount of compensation payable under this section to a worker who suffers permanent impairment resulting from an injury which entitles the worker to compensation under this Act is to be calculated as at the date of the injury as follows:
…".
There was no dispute that, at the time of the hearing before the Commissioner, the appellant suffered from an impairment. However, to establish an entitlement to compensation for permanent impairment, the appellant had to establish that that impairment resulted from the injury he suffered in the motor vehicle accident. The issue arose for the appellant because there was an intervening event in the form of a surgical procedure known as a laminoplasty.
Were the appellant successful in establishing that the impairment resulted from the accident injury, it would then be necessary for the degree of that impairment to be determined. The Act, s72, provides for the process to determine that. It provides:
"72 Assessment of degree of impairment
(1) An assessment of a degree of impairment is to be undertaken by a medical assessor in accordance with –
(a) any relevant guidelines issued by the Board; or
(b) if there are no such guidelines, the AMA Guides; or
(c) if there are no such guidelines and the AMA Guides are not applicable or are unsuitable, any method as may be prescribed.
(2) In assessing a degree of impairment of an injury –
(a) regard is not to be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, the physical injury; and
(b) the degree may comprise a combination of impairments arising out of the same incident or occurring on the same date assessed together using the combination tables in the AMA Guides; and
(c) if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed separately; and
(d) an impairment arising otherwise than from the injury is not to be taken into account in assessing the degree of the impairment resulting from the injury."
In Tasmania, there are "relevant guidelines" within the meaning of s72(1)(a). They were issued in November 2001, and are entitled "Tasmanian Workers Compensation Guidelines for the Assessment of Permanent Impairment under the Workers Rehabilitation and Compensation Act 1988 (WorkCover Tasmania Guidelines)" (hereinafter called "the Guidelines"). Clauses 1.2 and 1.3 under the heading "Introduction" in those guidelines provide:
"1.2The Guidelines have as their basis the American Medical Association publication 'Guides to the Evaluation of Permanent Impairment', 4th Edition, 3rd Printing (1995) (AMA 4 Guides). However, in these Guidelines, there are some very significant departures from that document. Medical assessors undertaking impairment assessments for the purposes of the Workers Rehabilitation and Compensation Act 1988 must read these Guidelines in conjunction with the AMA 4 Guides. These Guidelines are definitive with regard to the matters they address. Where they are silent on an issue, the AMA 4 Guides should be followed. In particular, chapters 1 and 2 of the AMA 4 Guides should be read carefully in conjunction with this chapter of the Guidelines. It may be helpful for medical assessors to mark their working copy of the AMA 4 Guides with the changes required by these Guidelines.
1.3The convention used in these Guidelines is that if the text is in bold, it is a directive as to how the assessment should be performed."
The AMA Guides referred to in s72(1)(b) are the AMA 4 Guides ("the AMA Guides") referred to in the preceding paragraph.
Factual background
The accident in which the appellant was injured occurred on 5 March 2009. The appellant was admitted to hospital and remained there for about a week. His care during this period was managed by a neurosurgeon, Mr Hunn. On 6 March 2009, an MRI examination was carried out in respect of the appellant. A combination of clinical signs and that MRI examination showed the appellant had suffered from a contusion to the cervical spinal cord. What the MRI also revealed was that the appellant suffered from a condition known as "stenosis". Stenosis is a narrowing of the spinal canal. The MRI disclosed reduced dimensions at C4/5 and at adjacent levels. The stenosis was as a consequence of congenital and degenerative factors, not the injury the plaintiff suffered. Until the MRI was done on 6 March 2009, the appellant was unaware he had the condition.
The appellant's condition post the accident improved, and he was discharged from hospital with a cervical collar. He was reviewed by Mr Hunn as an outpatient. A follow-up MRI on 25 May 2009 re-confirmed the presence of the stenosis and also, according to Mr Hunn, revealed the existence of "a persisting underlying area of signal change within the spinal cord". However, Mr Hunn was also then of the opinion that the damage caused in the accident was reversible and that the appellant would recover.
Mr Hunn told the Commissioner that he advised the appellant that the existence of the stenosis constituted, in the event that he was perhaps involved in another car accident, a further risk of cervical cord injury. Mr Hunn recommended that the appellant consider a cervical laminoplasty from C4 to C7. The Commissioner set out Mr Hunn's description of that procedure at par[7] of his reasons. It was as follows:
"7It was Mr Hunn's further evidence that the worker was advised that the existence of the stenosis constituted a risk to him of further cervical cord injury if he suffered a further accident. He was recommended to consider a cervical laminoplasty from C4 to C7. In a proof of evidence tendered at the hearing Mr Hunn describes this procedure in these terms;
'The laminoplasty surgery involves surgically cutting the bony laminae forming the spinal canal. In this case, I surgically cut through four laminae on both sides using a high powered surgical drill. Once the cuts were made, the surgery entailed taking bone from the pelvis and using it as a bone graft to wedge between the cuts in the vertebra to enlarge or widen the spinal canal. The bone inserted was then secured in place using metal ware and screws.'
'The surgical cutting of the vertebra is under a controlled environment, unlike in the case of a traumatic fracturing of the vertebral bone. The nature of the surgical procedure is designed to be motion saving and to retain normal functioning of the vertebral bodies and adjacent discs in the short to medium term. This is contrasted to a fusion surgery, where the vertebral bodies are fused together. Nevertheless, the surgery probably does interfere somewhat with the normal function and integrity of the spine as it cannot return it to an entirely normal state. The surgery itself may create some degree of loss of range of movement. This is in addition to the loss of movement caused by probable injury to the ligaments and muscles in the cervical spine due to the car accident. This is analogous to the “soft tissue” injuries associated with cervical kinetic (“whiplash”) type injuries.'"
The appellant accepted the recommendation of Mr Hunn, and the laminoplasty was performed on 29 July 2009. It involved four levels of the cervical spine, being C3 to C7. The appellant retained some impairment following the surgical procedure. The MRI done after the surgery showed that the accident injury had resolved.
The Commissioner's reasons
The Commissioner identified two issues arising in the appellant's referral to the Tribunal. The first was causation (that is whether the impairment resulted from the injury), and the second involved an interpretation of the AMA Guides and the Guidelines, in particular the meaning of the word "fracture".
Dealing with the issue of causation, the Commissioner at par[25] of his reasons, identified that the meaning of the expression "results from" for the purpose of the Act was well settled. He then set out a passage from a decision of the Full Court in Jones v Devonfield Enterprises (1995) 5 Tas R 345. He then said at par[26]:
"26Applying the above stated principle, the question becomes whether, upon a common sense evaluation of the causal chain, the worker's impairment has resulted from his accident injury? The answer to this question is dependent upon the answer to another, that is whether, applying the same test, the worker's laminoplasty resulted from his accident injuries?"
The Commissioner then set out at pars[27] – [28] his reasons for concluding that the impairment from which the appellant suffered did not result from the appellant's accident injuries. He said:
"27Although I accept that the motor vehicle accident may have caused some unidentified and non-specific injury to the spinal components in the area of the worker's neck it is apparent upon the evidence that the most significant injury suffered by the worker clearly identifiable both by clinical signs and by MRI examination was a contusion to the cervical spinal cord. This injury was revealed by the MRI taken the day after the accident and was also apparent on the repeat MRI taken some eleven weeks later, although by this time it had significantly reduced. Because the contusion could be seen to have reduced in size, Mr Hunn was, at this time, of the view that the harm to the spinal cord was reversible and this fact, coupled with an improvement in the worker's neurological signs enabled him to predict that the worker would make a full recovery from the spinal cord injury. This prediction was realized by the time the worker had his post-surgery MRI which indicated that the contusion had completely resolved.
28The evidence shows that the MRI taken on 6 March 2009 also revealed the worker's previously undetected stenosis. Mr Hunn acknowledged in cross-examination that at the time of this first MRI the decision was made to recommend to the worker that the stenosis be surgically corrected and this advice did not change despite the MRI of 25 May which indicated the worker's spinal cord damage to be reversible and enabled Mr Hunn to predict a full recovery. He further acknowledged that the worker's risk of further injury to his neck arose, not from the events associated with the car accident, but from the stenosis. These matters lead me to conclude that Mr Hunn's recommendation that the worker undergo a laminoplasty was principally motivated by a desire to protect him from a catastrophic spinal injury from which he was at risk because of his narrow spinal canal and not because of his spinal cord contusion or his other lesser neck injuries. This evaluation therefore leads in turn for me to determine that the need for the worker's laminoplasty has not resulted from his accident injuries. It follows that any impairment attributable to the laminoplasty has not, in my view, resulted from the worker's injuries."
As to the second issue, the Commissioner identified it at par[30] of his reasons. He said:
"30Whether the worker's impairment can be assessed by reference to DRE Cervicothoracic Category IV depends on a finding that his accident injuries have caused a multilevel structural compromise. The definition of this term, as stipulated by the Guidelines, requires a finding of 'fractures of more than one vertebra.' It is common ground that the worker did not suffer fractures of his vertebrae in the accident itself. The question therefore becomes whether the surgical cutting of the vertebrae carried out by Mr Hunn in the course of the laminoplasty amounted to fractures of the vertebral bone. This question requires a determination upon the meaning of the word 'fracture' in the context of the Guidelines and the AMA Guides."
The Commissioner determined that the surgical cutting undertaken by Mr Hunn was not a fracture.
Grounds of appeal
The appellant now appeals the Commissioner's decision in relation to both his determinations. The grounds of appeal are as follows:
"1The Learned Commissioner erred in law in holding that the Appellant's impairment had not resulted from his work injuries because the recommendation that he undergo a cervical laminoplasty was 'principally motivated' by a consideration other than his work injuries;
2The Learned Commissioner erred in law in applying a test for causation that required the Appellant's impairment to result solely or principally from his work injuries;
3The Learned Commissioner erred in law in holding that the facts as found by him did not answer the statutory description of, or meet the statutory criteria of a 'fracture', when those facts were necessarily within the description of that word;
4The Learned Commissioner erred in law in determining that the facts found by him as to the Appellant's injuries and resultant treatment did not constitute DRE IV category impairment under the Tasmanian Workcover Guides for Assessing Impairment.
5.That the Commissioner erred in law in failing to address the Appellant's alternate case that if the laminoplasty surgery did not involve 'fractures' of more than one vertebra it nevertheless constituted multilevel structural compromise and a DRE IV impairment.
6.That the Commissioner erred in law in failing to give any reasons for accepting or rejecting the Appellant's alternate case that if the laminoplasty surgery did not involve 'fractures' of more than one vertebra it nevertheless constituted multilevel structured compromise and a DRE IV impairment."
Nature of an appeal from the Tribunal
The Act, s63, provides that any party to a proceeding before the Tribunal who is aggrieved by a determination in point of law may appeal to the Court. The appellant was therefore confined in his appeal to establishing errors of law. Counsel for the respondent submitted that certain grounds of appeal were really challenges to findings of fact by the Commissioner and, as such, were not sustainable.
Grounds 1 and 2
These grounds address the finding made by the Commissioner in relation to causation. The finding as to causation was that any impairment attributable to the laminoplasty did not result from the worker's injuries. The appellant may only challenge that finding if he establishes an error of law.
Counsel for the appellant submitted that the error of law said to arise is apparent from the Commissioner's words in par[28] which precede his finding, where he says:
"These matters lead me to conclude that Mr Hunn's recommendation that the worker undergo a laminoplasty was principally motivated by a desire to protect him from a catastrophic spinal injury from which he was at risk because of his narrow spinal canal and not because of his spinal cord contusion or his other lesser neck injuries."
Counsel's submission was that the Commissioner, in making those findings of fact, misdirected himself, in that he focused on finding a principal reason for the surgery. It was submitted that, in making those findings of fact, the Commissioner used the wrong test of causation. The Commissioner should have approached the question on the basis that, if there were multiple reasons for the surgery and the appellant's accident injury was one of them, that was sufficient to establish a causal link between the injury and any impairment following the surgery. Counsel submitted that the Commissioner, by his use of the word "principally", had acknowledged there were multiple reasons for the surgery.
Counsel for the appellant made submissions by reference to a number of authorities as to the correct principles to apply to the issue of causation. I do not understand from the submissions by counsel for the respondent that there was any real dispute as to the correctness of the principles referred to. However, counsel for the respondent submitted that the Court did not need to descend to that level of examination of the Commissioner's reasons because the appellant's grounds of appeal as they related to causation were, in reality, challenges to a finding of fact made by the Commissioner. As such, the grounds of appeal in respect of this issue were not valid grounds of appeal, and it was unnecessary to consider the authorities relied upon by counsel for the appellant.
Error of law as opposed to error of fact
This issue needs to be determined first because, if the respondent is successful in respect of it, that may largely dispose of the appeal.
In Hanlon v McKay Investments Pty Ltd (2001) 10 Tas R 247, Evans J considered the question of what amounted to an error of law, also in the context of an appeal from a decision of a worker's compensation commissioner. In pars[6] to [15] inclusive, his Honour canvassed in detail relevant authorities. The decision was appealed. However his Honour's conclusions following his exhaustive consideration of the authorities were not disturbed.
As I have previously said elsewhere, I agree with his Honour's summary of and conclusions from the various authorities to which he referred.
Application of principle to the present case
The question of fact which the Commissioner had to determine was, did the appellant's impairment result from his injury? There is no argument that he correctly directed himself as to the law he needed to apply in considering the term "results from". In effect, what counsel for the appellant now submits is that the Commissioner should also have directed himself as to the law of causation and, had he done so, he would have to have found as a primary fact, were he to ultimately conclude that the impairment did not result from the injury, that the surgery was needed only to correct the plaintiff's stenosis. If there was more than one reason for the surgery, and one of those was to treat the accident injury, then the Commissioner would have to have concluded, having regard to the principles associated with determining causation, that the impairment resulted from the injury.
The starting point is the Commissioner's reasons. He found that the appellant's impairment did not result from his injury. That was a finding of fact not open to challenge on this appeal. The argument by counsel for the appellant rests on her interpretation of what the Commissioner meant when he used the word "principally" in par[28] of his reasons, and her submission that its use was indicative of a finding that there was more than one reason for the surgery. She went to some trouble to identify portions of the evidence which, she submitted, supported her argument that there were two reasons for the surgery, that is, to correct the stenosis, and to relieve accident injury symptoms. The Commissioner, however, had all that evidence before him, and made a finding contrary to that sought by the appellant.
I accept there was evidence from Mr Hunn as to the presence of "a persisting underlying area of signal change within the spinal cord" in May 2009. The evidence was not however that the laminoplasty was required to alleviate that. It may very well be that the appellant would not have had the laminoplasty procedure had he not had the accident. However, the only reason for that set of circumstances was that the appellant was unaware of the stenosis which resulted in the laminoplasty until investigations done as a consequence of the accident occurred. Further, the appellant's injury ultimately resolved, and that outcome was expected prior to the laminoplasty being done.
With respect, having regard to the evidence before the Commissioner, his use of the word "principally" does not necessarily suggest that he approached the matter on the basis that he was satisfied one of the reasons for the laminoplasty was to assist the appellant's recovery from his injuries, but decided that it was not the principal reason, and therefore drew the conclusion he did. If regard is had to the whole of par[28] of the Commissioner's reasons, and the paragraphs which immediately precede it, it is clear, in my view, that he formed the view the surgery was required to correct the stenosis, and not to relieve symptoms of the accident injury. That was a factual finding open to the Commissioner on the evidence, and one which cannot be challenged on this appeal.
In my view, grounds one and two of the notice of appeal seek to challenge findings of fact and, as such, are not valid grounds of appeal. If I am wrong as to that, I am not satisfied the Commissioner misdirected himself as to the principles of causation given my conclusion about what he meant by the use of the word "principally". These grounds must fail.
Remaining grounds of appeal
Counsel for the appellant urged the Court to determine these grounds irrespective of the outcome of grounds 1 and 2. Given the findings I have made in respect of grounds 1 and 2, it is actually unnecessary that I do so because those findings finalise the matter. However, for the same reason the Commissioner dealt with the question of what was meant by the word "fracture", I will deal with ground 3.
Ground 3 is predicated upon there having been a finding (which there was not) that the appellant's impairment resulted from his accident injury (even with the intervening surgery).
Ground 3
Ground 3 effectively challenged the definition of the word "fracture" adopted by the Commissioner for the purpose of his determination. There is no definition of the term "fracture" in either the Guidelines or the AMA Guide. Neither counsel referred to any authority in which the term had been considered. There is no dispute on the facts that when he performed the laminoplasty, Mr Hunn, using a powered electric drill, cut through the lamina on each side of the appellant's spine at four levels. At issue was whether that surgical cutting of bone could come within the meaning of the term "fracture".
At pars[30] to [33] of his reasons, the Commissioner said:
"30 Whether the worker's impairment can be assessed by reference to DRE Cervicothoracic Category IV depends on a finding that his accident injuries have caused a multilevel structural compromise. The definition of this term, as stipulated by the Guidelines, requires a finding of 'fractures of more than one vertebra.' It is common ground that the worker did not suffer fractures of his vertebrae in the accident itself. The question therefore becomes whether the surgical cutting of the vertebrae carried out by Mr Hunn in the course of the laminoplasty amounted to fractures of the vertebral bone. This question requires a determination upon the meaning of the word “fracture” in the context of the Guidelines and the AMA Guides.
31 In his evidence Mr Hunn acknowledged that the question whether the laminoplasty involved a fracture was 'an issue of the definition.' He described the operation as a procedure which involved a cutting or dividing of the vertebrae which constituted a 'surgical disruption' rather than a 'traumatic fracture.' He said that both mechanisms led to 'bony healing (which was) effectively identical.' I have already noted that Dr Sharman has expressed the view that the laminoplasty undertaken by Mr Hunn did involve a fracture of the vertebrae on the basis that it constituted a 'break in the continuity of the bony tissue.'
32 Counsel for the worker referred the Tribunal to some definitions of the word fracture. In the Oxford English Dictionary 'fracture' is described as 'the action of breaking or fact of being broken; breakage; spec. in Surg. (the earliest), the breaking of a bone, cartilage etc' and 'The result of breaking; a crack, division split, a broken part, a splinter'. An extract from the text, 'Surgery at a Glance,' Third Ed at page 85 defines a fracture as 'A break in the continuity of a bone.' It lists a number of fracture types and I note that the list does not include any surgery-related fracture. The same extract, under the heading 'Common Causes' says; 'Fractures occur when excessive force is applied to a normal bone or moderate force to a diseased bone, eg Osteoperosis'. The Merriam-Webster's Medical Desk Dictionary, Revised Edition states a fracture to be 'The act or process of breaking or the state of being broken specify the breaking of hard tissue (as bone), see Pott's fracture.' In addition I observe that the Macquarie Dictionary defines fracture as; 'The breaking of a bone, cartilage, etc, or the resulting condition (in a bone, called a simple fracture when the broken bone does not pierce the skin and a compound fracture when either the broken bone pierces the skin or protrudes into an open wound).'
33 In my view the approach to be taken in this matter is to apply the ordinary, everyday meaning to the word fracture when used to describe the state of a bone. If one says a bone is fractured it means that it has been subjected to excessive force which has caused it to break. Usually, it is understood that a bone fracture is the unintended consequence of a traumatic event although I accept that this does not always have to be the case. The word fracture, to my mind would not ordinarily be used to describe the separation or division of bone using a high powered surgical drill as part of a surgical procedure carried out in a controlled surgical setting. It is pertinent for me to note that Mr Hunn, in his description of the laminoplasty, has not used the word fracture but rather has described 'surgically cutting the laminae,' and 'using (a bone graft) to wedge between the cuts in the vertebra....' The foregoing leads me to conclude that the word fracture referred to in para 4.32 of the Guidelines should not be interpreted to encompass the surgical cutting, separation or division of the worker's vertebrae occurring as part of the laminoplasty performed by Mr Hunn. Consequently, the worker's accident injuries have not, in my view, caused a multilevel structural compromise because there has not been fractures of more than one of the worker's vertebra as required by para 4.32 of the Guidelines. It follows as a result that the worker's impairment does not qualify for assessment under DRE Cervicothoracic Category IV."
Ground 3 requires an examination of the relevant provisions of the Guidelines and the AMA Guide. I have already set out at par[4] the introductory parts of the Guidelines. Chapter 4 of those guidelines deals with spinal impairment. Assessment of impairment for the spine is to be done using diagnosis-related estimates (DREs) wherever possible (Guidelines, cl 4.1). Any assessment of spinal impairment is required to take into account the impact of surgery (Guidelines, cl 4.3). A medical assessor is required to start with Table 70 in the AMA Guide, as amended in the Guidelines, as a guide to an appropriate impairment (Guidelines, cl 4.5) and, if a medical assessor is unable to distinguish between two categories in the DRE categories in Table 70, then the higher category should be applied (Guidelines, cl 4.6).
The appellant's case was that his impairment should be assessed by reference to that part of Table 70 which referred to "Multilevel structural compromise", and be assessed as a DRE category IV. The Guidelines, cls 4.31, 4.32 and 4.33, provide:
"4.31Multilevel structural compromise is mentioned in Table 70 (p108, AMA 4 Guides) and refers to those DREs that are in categories IV and V. It is constituted by 'structural inclusion', which by definition (p99, AMA 4 Guides) is related to 'spine fracture patterns' and is different from the differentiators in Table 71 (p109 AMA 4 Guides).
4.32Multilevel structural compromise is to be interpreted as fractures of more than one vertebra. To provide consistency of interpretation of the meaning of multiple vertebral fractures, the definition of a vertebral fracture includes any fracture of the vertebral body, or of the posterior elements forming the ring of the spinal canal. It does not include fractures of transverse processes or spinous processes, even at multiple levels.
4.33Fractures of transverse or spinous processes are assessed as Category II in DRE because such fractures do not disrupt the spinal canal (p 104, AMA 4 Guides), and they do not cause multilevel structural compromise."
Counsel for the appellant submitted that, because the Act is remedial legislation it should be given a beneficial and wide interpretation. In this regard, counsel referred to a decision of the Federal Court in Dennis John Whitaker v Comcare [1998] FCA 1099. At 13, their Honours, Drummond, Cooper and Finkelstein JJ said, in dealing with what appear to have been acknowledged inconsistencies and problems in the guide there being considered, that the court was entitled to resolve the issues of interpretation raised by adopting an approach referred to in Commissioner for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Tiscay [1992] FCA 468, where Olney J said:
"The first principle established by the authorities is clearly stated by Hill J in Thiele v Commonwealth [1990] FCA 123; (1990) 22 FCR 342 at 346 when he said in relation to the precursor of the Act:
'The present legislation is socially remedial legislation intended to benefit workers and should be given a construction which advances its purposes as such. Thus where two constructions are possible, that which is favourable to the worker should be preferred: Wilson v Wilson's Tile Works Pty Ltd[1960] HCA 63; (1960) 104 CLR 328 at 335 per Fulmar J.'
Reference was also made to the dictum of Gibbs J (as he then was) in Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336 at 350: '[W]here two meanings are open ... it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust.' Having regard to the definition of the term "impairment", to the provisions of ss 14 and 24, and to the particular purpose of the Guide as provided in s 28(1), it seems that the legislative policy of the Act is to provide for the payment of compensation to an employee who has suffered an injury resulting in a permanent impairment. The Guide should be construed and applied in aid of the general statutory purpose, not as a means of limiting it."
Counsel went on to refer to a decision in Transport Accident Commission v Serwylo [2010] VSC 421, a case involving interpretation of terms in the AMA Guide. Kaye J said at par[25] (omitting footnotes):
"25 The principles governing the construction of the Guides are now well established. They were helpfully summarised by Kyrou J in H J Heinz Company Australia Limited & Anor v Kotzman & Ors. For the purposes of the present appeal, the following principles are relevant:
(1) The construction of the Guides is a question of law. On the other hand, the determination of a level of impairment, according to the Guides, is a question of fact.
(2) The rationale of the Guides is to make as objective as possible the process of estimating impairment, and, thereby, to promote precision, certainty and consistency.
(3) However, on the other hand, the Guides have been written, not by statutory draftspersons, but by medical practitioners, who are expert specialists in the various fields covered by the Guides. As their title accurately suggests, they are 'guides'. They are designed to be applied by medical practitioners in expressing their factual opinion as to the degree of impairments in a particular case. For that reason, it is important that the Guides not be burdened with a legalistic interpretation which would render them a legal 'minefield', thus depriving them of utility to both doctors and lawyers."
Counsel ultimately submitted that the AMA Guide was prepared by medical practitioners (there was no evidence as to this but counsel for the respondent took no issue with the statement), that it was most likely prepared by doctors who probably believed they knew what the word "fracture" meant, and insufficient thought had been given to its meaning, and ensuring that meaning was clearly stated. Having regard to the nature of the legislation pursuant to which the AMA Guide was considered, it was necessary, she submitted, to give the word its widest possible meaning and one which would benefit the worker. Hence, it should be interpreted as meaning any break in bone.
Relevant principles of statutory interpretation generally
In Pearce and Geddes, Statutory Interpretation in Australia 6th ed (2006), the learned authors at 25 said of the literal approach to statutory interpretation:
"The literal approach (sometimes called a rule) was defined and explained by Higgins J in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd(the Engineers' Case) (1920) 28 CLR 129 at 161 – 162 as follows:
'The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.'"
The learned authors went on to refer to a more recent decision of Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 where, at 384, McHugh, Gummow, Kirby and Hayne JJ said:
"However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."
Blow J in Nekon Pty Ltd v Commissioner of State Revenue [2010] TASSC 23, referred to both the above cases and a more recent High Court decision in which issues of statutory interpretation were considered. At par[9] he said:
"In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at par[47], Hayne, Heydon, Crennan and Kiefel JJ said (omitting footnotes):
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.'"
It is trite to also refer to the Acts Interpretation Act 1931, s8A, which provides that an interpretation which promotes the purpose or object of an Act is to be preferred to one which does not. Section 8B of that Act, that is that provision which deals with the use of extrinsic material in interpreting legislation, is also, in my view, relevant.
The present case
As I have already said, the term "fracture" is not defined in either the Guidelines or the AMA Guide. The objects of the Act, stated in s2A, do not greatly assist with the interpretation of the term. Counsel for the appellant submitted that Dr Sharman was one of the drafters of the Guidelines, I infer, to suggest his evidence as to what the term "fracture" meant had to be correct and should be accepted. Dr Sharman said in his evidence that he was part of a working party involved when the Guidelines were drafted and then recently revised. The Guidelines themselves indicate that they were adapted from guidelines developed for the NSW Motor Accidents Authority by a consortium of which Dr Sharman was not a part. However Dr Sharman was part of a group which supported Dr Jim Stewart's overseeing of the modification of the New South Wales guidelines. There was no evidence that the consortium or the support group gave any consideration to the term "fracture" or that, for example, the definition given by Dr Sharman in his evidence was one which either the consortium or the support group had adopted and just not formalised in writing. This suggests that those responsible for the drafting of the Guidelines assumed that the word "fracture" was used so commonly that there would be no dispute about its meaning. It does not follow that Dr Sharman's definition is necessarily correct.
In his report tendered before the Commissioner, Dr Sharman said at 7:
"… the surgery involved does involve surgically-induced 'fractures', bone grafting and metalware fixation at multiple levels affecting the structural integrity of the spine, even though the integrity of the discs and facet joints has not been affected by the operation."
In his evidence-in-chief, Dr Sharman described a fracture in the following terms:
"Well, in the most basic terms, a fracture means a disruption of the continuity of a bone and whether that's inflicted as a result of trauma or whether it's performed skilfully by a surgeon, there is still a break in the continuity of the bone, and that, to my mind, is a fracture."
Under cross-examination, Dr Sharman conceded that Mr Hunn did not refer to his procedure as fracturing the lamina. He also accepted from his experience that it was probably true that surgeons did not talk of fracturing in the context of this type of surgery. He also agreed that the term was normally used in the context of trauma. Having said that, he said he thought the "technical" definition of a fracture was simply a disruption of bony tissue. He had read that in a medical text but was unable to identify precisely what that might have been. He conceded there was no definition of fracture in either the Guidelines or the AMA Guide. Dr Sharman was then shown an extract from a medical dictionary where the term "fracture" was defined as "the act or process of breaking or the state of being broken specif: the breaking of hard tissue (as bone)", and agreed that was a similar definition to that which he had seen in other books.
The Commissioner also had before him the other dictionary and text references to which he referred in par[32] of his reasons.
It is interesting to note that many of the definitions use the terms "break", "breaking" or "broken". That wording would not usually be associated with a precise surgical cut, which is what is being considered here. Mr Hunn of course did not describe what he did as fracturing the lamina, although suggested there was no real difference between what he did and a traumatic fracture. Counsel for the appellant submitted that what was happening was there was confusion between the methodology by which a break had occurred and whether there had in fact been a break. She also referred to the phrase in the Guidelines in cl 4.32, "any fracture", and suggested that was an attempt by the author to give as wide an interpretation as possible to the term "fracture".
It cannot in all the circumstances simply be assumed that the doctors responsible for the Guidelines had a particular definition of the term "fracture" in mind, namely that which counsel for the appellant submits is correct. There is no evidence at all about what the drafters intended. Dr Sharman, while giving a particular definition which is arguably a very wide one, accepted that doctors would not normally describe the process undertaken by Mr Hunn as a fracturing. The rhetorical question needs to be asked, why should the Commissioner have adopted Dr Sharman's broad definition against that background in effect without regard to any other consideration?
Impairment under the Guidelines is to be determined following an injury to a worker. An injury, by its very nature, involves some kind of trauma to the worker. While the present case involves intervening surgery, that is not always necessarily the case. In the circumstances, the term "fracture" is more likely than not to have been used in the context of a break in the continuity of a bone caused by an injury or some sort of trauma. Had the drafters of the Guidelines intended that the term "fracture" should include, not only what might be considered the layman's or conventional view of its meaning, but also a surgical cutting, they could clearly have done so. They did not.
The Commissioner's conclusion was clearly that the definition for the purpose of the Guidelines was not the extended meaning now contended for. With respect, I am of the view he was correct. Ground 3 must therefore fail.
Ground 4
Counsel for the appellant has again sought that the Court deal with this ground of appeal, even if the appellant is unsuccessful in respect of grounds 1 and 2. The Court is asked to determine these grounds on the assumption that the laminoplasty procedure resulted from the appellant's accident injury, that is, any impairment as a consequence of the surgery resulted from the accident injury.
Ground 4, although it was not immediately clear from its wording, related to an "alternate" case put by the appellant to the effect that, even if the surgical cutting undertaken by Mr Hunn did not constitute fracturing of the lamina, the result was, in any event, a multilevel structural compromise, and therefore a DRE IV impairment.
Ground 4 in essence is a complaint that the Commissioner did not make a finding that the appellant sought, namely that even if the surgical cutting undertaken by Mr Hunn did not constitute fracturing of the lamina, the result was in any event a multilevel structural compromise.
Counsel for the appellant based her submissions about the correctness of this alternate case on Dr Sharman's evidence. The written submission of counsel for the appellant was in the following terms (without footnotes):
"This alternate case was based on Dr Sharman's evidence that even if the surgical cutting of the bone for the purpose of the laminoplasty did not constitute a fracture within the meaning of the definition of multilevel structural compromise in the Tasmanian Guides, the outcome of the surgery still produced a structural compromise at more than one level of the cervical spine and therefore fell within the commonly understood meaning of multilevel structural compromise both in the Tasmanian Guides and the American Medical Association Guides. Mr Hunn agreed that the surgery caused compromise at more than one level of the spine and satisfied multilevel structural compromise."
With respect, this description of Dr Sharman's evidence is a little misleading. In his evidence-in-chief Dr Sharman was asked if the phrase "multilevel structural compromise" was defined anywhere. He responded:
"Well, there is a definition given in the Tasmanian Workcover guides and I suppose there is a common sense understanding of what that term might mean."
He then went on to say what he meant. He said:
"Well, I suppose a common sense understanding multilevel, would mean more than one level and levels in the spine are the segments of the spine which usually refer to the vertebral levels in the cervical spine, that's CI through to C8. The term 'structural' I suppose the common sense meaning of that would mean the anatomical structures that make up the spine, and compromise means it's in some way affected."
Counsel also submitted that Mr Hunn agreed that the surgery caused compromise at more than one level of the spine and satisfied multilevel structural compromise. I have reviewed his evidence and nowhere am I able to find his agreement that any compromise to the spine caused by the surgery satisfied the definition of multilevel structural compromise.
Counsel for the appellant relies almost entirely in this argument upon Dr Sharman's common sense understanding of the term, "multilevel structural compromise". However, Dr Sharman in his evidence used phrases such as he "supposed" there might be a common sense understanding, and that he supposed it "would" mean something. Nowhere did he say that his "common sense understanding" was an accepted approach under the Guidelines and one which he had, for example, utilised before. His evidence about this was very vague.
As to the use which might be made of his "common sense" understanding, cls 1.2 and 1.3 of the Guidelines (set out in par[4] of these reasons), provide for the manner in which the Guidelines and the AMA Guide are to be used for assessment purposes. In particular, cl 1.3 refers to the approach required in respect of text in bold, namely it is directive. In cl 4.32, which deals with the concept of multilevel structural compromise, the opening sentence is in bold. It says:
"Multilevel structural compromise is to be interpreted as fractures of more than one vertebra."
The rest of the clauses under the heading "Multilevel Structural Compromise" all refer to fractures. As I understand the approach being advocated, it would be that the existence of a fracture or fractures is irrelevant to a consideration of what might constitute a multilevel structural compromise. With respect, I am unable to see how the provisions of the Guidelines would allow for an assessment based upon this approach. No explanation, apart from the reliance upon Dr Sharman's evidence, was put forward as to why the advocated approach would be permissible.
Counsel for the appellant made a brief reference to the impact of the Act, s72(1)(c), on this argument. That is set out in par[3] of these reasons. With respect, that provision can have no application in the present case. Resort may only be had to another prescribed method of assessment "if there are no such guidelines and the AMA Guides are not applicable or are unsuitable". There clearly are "such guidelines" in the form of the Guidelines.
Ground 4 on any basis must therefore fail.
Grounds 5 and 6
Ground 5 asserts that the Commissioner failed to address the appellant's alternate argument. With respect,, there was no need for him to deal with this argument in any detail. He concluded there needed to a be a fracture, that there was not, and that there could therefore, by reference to the definition in the Guidelines, not be a multilevel structural compromise. That ground must also fail.
While I have proceeded this far with the grounds of appeal, it was only at the urging of counsel for the appellant that I did so. Ground 6 can have no impact on anything, given the findings that I have made. I therefore do not propose to deal with it.
Further submissions
Counsel were asked to make written submissions after the hearing concluded in relation to a particular issue. I should perhaps refer to these, given they gave rise to an issue somewhat hotly contested by counsel for the respondent. The issue was the reference to, and apparent reliance upon by counsel for the appellant, a letter which I will call the Lethborg letter. I have, consistent with the submissions of counsel for the respondent, not relied upon it. It has no standing. It was not an exhibit, there was no application to tender it, and it does not fall within the range of material to which a court might have regard by virtue of the Acts Interpretation Act, s8B.
Outcome
As grounds 1 to 5 have all failed, the appeal is dismissed.
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