Mohammed v Whittlesea City Council
[2018] VSC 566
•3 October 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 04026
| YOUSUFULLAH MOHAMMED | Plaintiff |
| v | |
| WHITTLESEA CITY COUNCIL & ORS (according to the Schedule attached) | Defendants |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 August 2018 |
DATE OF JUDGMENT: | 3 October 2018 |
CASE MAY BE CITED AS: | Mohammed v Whittlesea City Council |
MEDIUM NEUTRAL CITATION: | [2018] VSC 566 |
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WORKERS COMPENSATION – Impairment – Assessment – Medical Panel – Spinal impairment categories – Multilevel fracture of spinal segments – Whether constituted multilevel motion segment structural compromise – Whether ‘fracture’ – Meaning of ‘fracture’ – Proper test – Whether origin or cause of ‘fracture’ relevant – Whether there should be restriction or limitation on the meaning of ‘fracture’ – American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition) DRE Cervicothoracic Category IV Structural Inclusion (2) – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) pt 6 – Accident Compensation Act 1985 (Vic) s 91.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Uren QC with Mr L Allan | Arnold Thomas & Becker |
| For the First Defendant | Mr M Fleming QC with Mr R Kumar | Hall & Wilcox |
HIS HONOUR:
Introduction
Yousufullah Mohammed (‘the plaintiff’) seeks to quash the certificate of determination of a medical panel (‘the panel’) dated 8 August 2017 (‘the determination’) upon a question referred to it under pt 6 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘the Act’). The application is made under O 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
Background
The plaintiff commenced full-time employment with the Whittlesea City Council on 10 August 2010 as a parking officer. On 8 May 2014, he tripped and fell while walking along Epping Plaza in the course of his duties. He injured his left ankle and foot. Later that day, after returning to the Council offices, he fell down a flight of stairs.
On 18 May 2015, the plaintiff made a claim for impairment benefits relating to a number of injuries.
On 15 September 2015, liability for the plaintiff’s neck injury was accepted on behalf of the first defendant. However, the whole person impairment arising from that injury was assessed at 0%.
On 14 October 2015, the plaintiff accepted the liability determination, but disputed the impairment assessment.
On 27 October 2015, certain medical questions were referred to the Convenor of Medical Panels, Associate Professor Peter Gibbons (‘the convenor’), for determination by the panel.
On 1 February 2016, a neurosurgeon, Mr Timms, performed a C5–6 anterior cervical discectomy, fusion and partial vertebrectomy. On 5 February 2016, a further procedure was performed to remove a fractured wound drain and superficial haematoma.
Mr Timms described the procedure in these terms:
A discectomy and partial vertebrectomy at C5 and C6 was performed as well as rhizolysis. There was a disc osteophyte complex on the left causing neural compression. Once this was removed a good decompression was observed. Good haemostasis and no CSF. The wound was irrigated several times. The disc space was measured and a size 4 mm cage was placed into this space under vision. Further partial anterior vertebrectomy of C5 and C6 created a bed for a 24 mm plate to be secured anteriorly and locked into position.
On 23 January 2017, further questions were referred to the convenor for determination by the panel. The convenor constituted a panel comprising of Associate Professor Paul McCrory, neurologist; Dr Susanne Homolka, occupational physician; Dr Anthony Sheehan, psychiatrist; Dr Diana Korevaar, psychiatrist; and Mr Rodney Simm, orthopaedic surgeon.
On 1 June 2017, a psychiatric assessment was performed by Dr Sheehan and Dr Korevaar. On 5 June 2017, a physical assessment was performed by Dr Homolka, Mr Simm and the convenor.
Request for information
On 14 July 2017, the convenor wrote to the plaintiff and first defendant, requesting further information under s 312 of the Act. He requested submissions as to the application of the decisions of Transport Accident Commission v Serwylo[1] and Elsdon v Victorian WorkCover Authority.[2] The convenor was concerned with:
… whether the surgical treatment that has resulted in breaks in the continuity of bone should be considered a fracture for the purpose of applying Category IV of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition),[3] noting that the operative intervention arose as a consequence of an accepted injury to the worker’s cervicothoracic spine.
[1](2010) 33 VAR 364 (‘Serwylo’).
[2][2012] VSC 347 (‘Elsdon (No 1)’).
[3]American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed) (‘Guides’).
The convenor’s letter refers to the first instance decision in Elsdon (No 1), but not to the decision of the Court of Appeal in Victorian WorkCover Authority v Elsdon.[4]
[4](2013) 42 VR 434 (‘Elsdon (No 2)’).
The submission by the plaintiff’s solicitors to the panel was dated 31 July 2017 and said, in part:
As per the decisions [Serwylo] and [Elsdon (No 1)] and the parts of those decisions reproduced in your previous letter, we state that the surgical treatment which has resulted in breaks in the continuity of bone should be considered a fracture for the purpose of applying category IV of the guides.
The decision of HJ Heinz Company Australia Ltd v Kotzman[5] … sets out that the construction of the Guides is a question of law and that the determination of the level of impairment is a question of fact. 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.
…
The Serwylo and [Elsdon (No 1)] cases are authority for the proposition that fractures at more than one level, by definition, satisfy the criteria of Structural Inclusion (2) “regardless of the actual severity of the fracture, or its capacity to disrupt the spinal canal or otherwise compromise the structural integrity of the spine” ([Elsdon (No 1)] at [42]).
The Serwylo and [Elsdon (No 1)] cases are authority for the proposition that fractures or dislocations of more than one spinal segment are, by their nature, instances of multilevel spine segment structural compromise, including healed fractures (the definition of structural inclusions on page 102 of the Guides in relation to DRE Categories II and III include healed fractures).
We state that the surgical treatment which has resulted in breaks in the continuity of bone within our client’s spine constitute multilevel spine segment structural compromise. A break in the continuity of bone is a fracture as per the Lexis Nexis Encyclopaedic Australian Legal Dictionary: “In medicine, a break or interruption in the continuity of a bone.”
As stated in the Guides the patient demonstrates the structural inclusions of two categories, the physician should place the patient in the category with the higher impairment percentage. Further in the Serwylo case the Court held that the use of the words “as with fractures” in the Guides were intended by the authors to mean that the presence of multiple fractures in a region of the spine was sufficient to justify DRE Category IV regardless of whether the medical examiners were of the opinion that the fracture actually caused multiple levels of structural compromise.
…
As such the surgical treatment which has resulted in breaks in the continuity of bone should be considered a fracture for the purpose of applying category IV of the Guides.
[5](2009) 31 VAR 206 (‘Heinz’).
The submission on behalf of the first defendant was made to the panel on 27 July 2017, and stated:
In [Serwylo], Kaye J accepted the submission of the respondent in [22] that the phrase “as with” in Structural Inclusion (2) of DRE lumbosacral category IV had the effect that injuries, consisting of fractures of more than one lumbar vertebrae, constitute multilevel spinal segment structural compromise within Category IV. The respondent noted that the Oxford Dictionary and the Macquarie Dictionary defined “compromise” to mean to “endanger”, “make liable to danger” or “place in peril”. Kaye J accepted the respondent’s submission that it was therefore unnecessary, in order that an impairment qualify under Category IV, for there to be actual disruption of the spinal structure; rather, it is sufficient that there be injuries, such as fractures at two levels, which potentially imperil, and thus compromise, that structure.
It follows that there is a need to differentiate between structural changes of the spine based on whether they compromise (resulting from insult) or augment (surgical intervention to stabilise and strengthen) the structural integrity of the spine.
It is submitted that in relation to Yousufullah Mohammed’s cervical injury the spinal surgery has been performed to augment and stabilise the structure of the spine rather than to compromise its structural integrity.
It is submitted that the Panel should have regard to the definition and description of “fracture” contained in Edition 28 of Dorland’s Illustrated Medical Dictionary and Edition 6 of Miller-Keane Encyclopaedia & Dictionary of Medicine, Nursing, & Allied Health in determining whether Mr X’s spinal surgery constitute multilevel fractures for the purpose of engaging the “multilevel spine segment structural compromise” descriptor in DRE IV.
(i)Edition 28 of Dorland’s Illustrated Medical Dictionary describes fracture as 1. the breaking of a part, especially a bone. 2. a break or rupture in a bone.
(ii)Edition 6 of Miller-Keane Encyclopaedia & Dictionary of Medicine, Nursing, & Allied Health describes fracture as (1) The breaking of a part, especially a bone, (2) a break in the continuity of a bone; fractures may be caused by trauma, by twisting due to muscle spasm, or indirect loss of leverage or by disease that results in osteopenia.
The Supreme Court of Tasmania considered whether surgical treatment satisfies the definition of “fracture” within the meaning of DRE category IV of the Guides in Jenkins v State of Tasmania.[6] Tennent J rejected the view that the surgical cutting, separation, division or breaks in continuity of a bone as a result of surgical treatment should be considered a fracture for the purpose of applying the injury model in the Guides.
It is submitted that the Panel should follow the decision in Jenkins that surgery should not be considered a fracture for the purpose of the application of the Guides injury model, noting that the model is intended to “document physiologic and structural impairments relating to insults other than common developmental findings”.
[6][2012] TASSC 22 (‘Jenkins’).
The plaintiff’s submission to the panel referred only to Elsdon (No 1), whilst the first defendant’s submission did not refer to Elsdon (No 1) or Elsdon (No 2). Neither submission alerted the panel to the fact that Elsdon (No 1) had gone on appeal, and that the appeal had been determined by the Court of Appeal in Elsdon (No 2).[7]
[7](2013) 42 VR 434.
The panel’s opinion
The panel issued a certificate of opinion dated 8 August 2017. In its reasons for opinion, the panel found that the plaintiff had a 5% whole person impairment resulting from the accepted head, right shoulder, lower back, neck, left foot and left ankle injury, when assessed in accordance with s 91 of the Accident Compensation Act 1985 (Vic) (‘Accident Compensation Act’). The degree of impairment was considered permanent. The panel was of the opinion that there was a 2% psychiatric impairment resulting from the accepted psychiatric condition injury when assessed in accordance with s 91 of the Accident Compensation Act. The degree of psychiatric impairment was also considered permanent.
The panel said as to whether the plaintiff had suffered a fracture by reason of the spinal fusion surgery:
The Panel gave consideration to the terms “multi-level fracture” and “loss of motion segment integrity”. The Panel is of the opinion that spinal fusion surgery, whereby screws are inserted into the vertebrae to enhance stability, and the success of the procedure, as was seen in the interbody fusion at the C5/6 level of the worker’s cervical spine, does not cause a fracture in the medical sense of the word because there is no instability, and the surgery is done to augment (stabilise and strengthen) the structure of the spine rather than to compromise its structural integrity. The Panel is of the opinion that the worker underwent a C5/6 cervical spinal fusion to achieve rigidity across the vertebrae, and the Panel considers that the resultant increased unity in the spine increases, rather than decreases, the stability of the spine.
The Panel also considered that the screws inserted into the cervical spine do not result in a loss of motion segment integrity, as the instrumentation is surgically placed to achieve stability of the spine.
The Panel considered that the Injury Model of Impairment assessment in the Guides is intended to document physiological and structural impairments relating to insults which compromise the natural integrity of the spine, rather than surgical augmentation to stabilise and strengthen the spine. Consequently, the Panel is of the opinion that surgical cutting, separation, division or breaks in continuity of bones as a result of surgical treatment to the worker’s cervical spine, should not be regarded as fractures for the purposes of applying the Injury Model in the AMA Fourth Edition Guides.
The panel’s decision does not advert to Elsdon (No 2) or the meaning of the term ‘fractures’ accepted by the majority in it.
The Guides
Pursuant to s 91 of the Accident Compensation Act, assessments of impairment are to be made in accordance with the Guides.[8]
[8]The Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) came into operation on 1 July 2014. Pursuant to s 1(b) of the Act, the Accident Compensation Act 1985 (Vic) continues to apply in respect of injuries arising out of accidents in the workplace before 1 July 2014.
The purpose of the Guides is stated as:
The major objective of the Guides is to define the assessment and reporting of medical impairments so that physicians can collect, describe, and analyse information about impairments in accordance with a single set of standards. Two physicians, following the methods of the Guides to evaluate the same patient, should report similar results and reach similar conclusions. Moreover, if the clinical findings are fully described, any knowledgeable observer may check the findings with the Guides criteria.[9]
[9]Guides, 7.
As to the evaluation of spinal injuries, the Guides state:
One of the purposes of the Guides is to lead to similar results when different clinicians evaluate illnesses and impairments. For evaluating spine impairments, past Guides additions have used a system based on assessing the degree of spine motion and assigning impairment per cents according to limitations of motion. Impairment per cents related to the range of motion were to be combined with per cents based on diagnosis or therapeutic approaches and neurological impairments.[10]
[10]Ibid 94.
In Heinz, Kyrou J said:
The use of the Guides is designed to promote precision, certainty and consistency. Its purpose is to make as objective as possible the process of estimating impairment by reference to sufficient medical and non-medical information to justify the estimate.[11]
This passage was quoted with approval by Bongiorno JA and Dixon AJA in Elsdon (No 2).[12]
[11]Heinz (2009) 31 VAR 206, 212 [27] (‘Heinz’).
[12](2013) 42 VR 434, 446 [49].
Table 73 of the Guides lists the following categories of cervicothoracic spine impairments:[13]
[13]Guides, 110.
DRE[14] Impairment Category
Description
I Complaints or symptoms II Minor impairment: clinical signs of neck injury without radiculopathy or loss of motion segment integrity III Radiculopathy: evidence of radiculopathy is present IV Loss motion segment integrity or multilevel neurologic compromise V Severe upper extremity neurologic compromise: single-level or multilevel loss of function VI Cauda equine syndrome without bowel or bladder impairment VII Cauda equine syndrome with bowel or bladder impairment VIII Paraplegia [14]Diagnostic-related estimates.
DRE Cervicothoracic Category IV, loss of motion segment integrity or multilevel neurologic compromise, is described in the Guides as:
The patient has loss of motion segment or structural integrity or bilateral or multilevel radiculopathy… Loss of structural integrity is defined as more than 3.5mm of translation of one vertebra on another, or angular motion at one motion segment that is more than 11° greater than the angular motion at an adjacent motion segment… Radiculopathy as defined in category III, if present, should be bilateral or involve several levels. A documented history of muscle guarding and pain should be present.
Structural Inclusions: (1) Greater than 50% compression of one vertebral body without residual neurologic compromise: (2) multilevel motion segment structural compromise without residual neurologic motor compromise, for example, multilevel fracture or dislocation.[15]
[15]Guides, 104 (emphasis added).
The Guides do not define what constitutes ‘multilevel motion segment structural compromise’, nor a ‘fracture’.
Plaintiff’s submissions
The plaintiff’s case was that the surgical procedure used constituted a fracture as the word is used in Structural Inclusion (2). This was said to be because it resulted in a break, dislocation or disturbance of the continuity of the bone.
Senior counsel for the plaintiff described the surgical procedure as consisting of three elements. First, the C5 and C6 end plates were partially removed. A cage was then inserted where the displaced disc had been. The cage was held in place by screws to each of the vertebrae. Drilling was necessary to produce holes in the vertebra into which the screws were inserted.
The plaintiff submitted that the break in the continuity of the bone arose from the insertion of screws, and from the removal of a portion of the end plates of each of the vertebrae. A fracture is a simple physical thing. It does not matter that the break in the continuity of bone results from a surgical process and is done for therapeutic purposes. The introduction of purpose, and the qualification which the panel introduced into its decision making, did not come from the Guides and was an erroneous restriction. The origin of a fracture is immaterial to the application of Structural Inclusion (2). It was not open to the panel to conclude that there was no fracture on the basis that it resulted from a successful medical intervention. The panel was wrong when it held that because spinal fusion stabilised and strengthened the structure of the spine, the procedure would not result in a fracture.
First defendant’s submissions
Senior counsel for the first defendant described the surgical procedure in different terms. According to the first defendant, a 4mm cage was inserted into the disc space. The ‘smoothing’ of the surface or lamina of C5 and C6 created a bed for a 24mm plate to be secured and locked into position. The end plates were not removed, and the plate was fixed by screws drilled into the bone.
The first defendant submitted that it was open to the panel to hold (as it had) that spinal fusion surgery, where screws are inserted into the vertebrae to enhance stability, and the procedure was successful, did not cause a fracture in the medical sense of the word. It was entitled to find that the surgical cutting, separation, division or breaks in continuity of bone as a result of surgical treatment to the cervical spine should not be regarded as a fracture.
The first defendant did not submit that merely because a breakage was iatrogenic (caused by a doctor) that it would necessarily fall outside the concept of a fracture. Rather, it submitted that there was no fracture here because the smoothing of the surface or lamina of C5 and C6 to create a bed for the plate and the insertion of screws to secure the plate did not constitute a fracture.
Relevant decisions
In Serwylo,[16] Kaye J considered a claim following a motor vehicle accident which resulted in fractures to the superior end plate of the lumbar vertebrae at L2, L3 and L4. The issue was whether the impairment suffered by Ms Serwylo could properly be characterised as ‘multilevel spine segment structural compromise’ in Structural Inclusion (2) of DRE Lumbosacral Category IV.
[16](2010) 33 VAR 364; leave to appeal refused: [2011] VSCA 305 (Ashley and Harper JJA, Ross AJA).
Kaye J characterised the issue for determination in these terms:
The issue which I need to determine on this appeal is quite narrow. In essence, it turns on the meaning of the phrase “as with fractures” in Structural Inclusion (2) of Category IV. The critical question is whether (as contended by the respondent) that phrase denotes instances of conditions which are cases of multilevel spine segment structural compromise, or whether (as contended by the appellant) it denotes instances of conditions which might constitute multilevel spine segment structural compromise.[17]
[17]Serwylo (2010) 33 VAR 364, 371 [26] (emphasis in original).
Kaye J concluded that the expression ‘as with’ denoted instances of conditions which were cases of multilevel spine segment structural compromise:
The phrase “as with” is, of course, potentially ambiguous, and it is that ambiguity which has given rise to the dispute on this appeal. However, in my view, as a matter of plain English, that phrase is more appropriate when used to denote instances which do – and not just which might - constitute instances of multilevel spine segment structural compromise. If the authors had intended that phrase to denote instances of conditions which might – but not necessarily do – constitute the relevant compromise, the authors could have simply drafted the phrase to read: “as might occur with fractures.”[18]
[18]Ibid 372 [29].
The construction of the same passage of the Guides was considered by the Court of Appeal in Elsdon (No 2).[19] The claimant worker had sustained a superior end plate fracture of L2 and a right transverse fracture of L1, which resulted in ongoing lower back pain and restricted back movements. The issue was again whether he suffered ‘multilevel spine segment structural compromise, as with fractures or dislocations’.
[19](2013) 42 VR 434.
Bongiorno JA and Dixon AJA considered submissions by VWA that the meaning of the expression ‘fractures’ was not in issue in Serwylo, as all the fractures in issue were fractures of a type capable of leading to structural compromise; and that the term ‘fractures’ had a technical or specialist meaning.
As to these submissions, Bongiorno JA and Dixon AJA held:
Although the fractures in Serwylo were of a different type to those suffered by the respondent, the common feature, from the insurer’s perspective, was that in each case there was no structural compromise. The meaning of “fractures”, simpliciter, was not put in issue in Serwylo and we do not see that it is truly in issue before us. The submission slides from an unqualified reference to fractures, the fact of fracture, to the consequence of fracture, the fact of compromise. The nature of the fractures is not a relevant consideration in the construction of structural inclusion (2), because the plain words of the description do not admit that the concept of fractures is qualified or modified. This proposition was put to, and rightly rejected by, both Kaye J and the primary judge. Neither judge reasoned from the characterisation of the severity of the fracture (a question of fact), correctly addressing the proper construction of the language used (a question of law). That language disclosed that the authors of the Guides chose to direct medical practitioners using the Guides that by their nature, multiple fractures, including minor healed fractures, are instances of multilevel spine segment structural compromise. No new submission was put to us that the relevant reasoning, set out above, was erroneous.[20]
[20]Ibid 450–451 [67], citing Elsdon (No 1) [2012] VSC 347, [41] (Macaulay J).
Later, they considered whether there was a need to introduce qualifying restrictions into the definition of ‘fractures’ or to exclude transverse process fractures from the scope of Structural Inclusion (2) to avoid absurd results, or as a consequence of the juxtaposition of the term ‘fractures’ with the expression ‘multilevel spine segment structural compromise’.
Bongiorno JA and Dixon AJA rejected the submission that the term ‘fractures’ should be restricted, or that it had an accepted specialist medical meaning in circumstances where no such meaning had been put to them:
That submission faces several difficulties, the first of which is that the appellant did not identify the evidence of an accepted specialist medical meaning of “fractures”. It is clear that, in the Guides, the phrase “as with fractures or dislocations” uses “fractures” and “dislocations” as nouns, that are, notably, unqualified by any adjective. The Macquarie Dictionary definition (of nouns) is:
fracture n. 1. the breaking of a bone, cartilage, etc., or the resulting condition … 2. the characteristic manner of breaking. 3. the characteristic appearance of a broken surface, as of a mineral. 4. the act of breaking. 5. the state of being broken. 6. a break, breach, or split.
As we understand the appellant’s contentions, it is entirely in that sense that the word “fractures” is to be understood.
It is plain that Kaye J, the Court of Appeal when refusing leave, and the primary judge all understood the word “fractures” in its ordinary, lexical, defined meaning, but there is nothing said in Serwylo that is affected if “fractures” has a meaning that is other than its ordinary meaning.
Further, as we understood it, the appellant’s contention—that “fractures” in structural inclusion (2) excluded transverse process fractures—developed from the notion that healed, undisplaced, transverse process fractures could not compromise multilevel spine segment structures. There is no aspect of this contention that requires, or even suggests, that “fractures” is used in a technical or specialised sense that is different from its plain meaning.
To suggest that the word has an ostensive meaning, identified in the relation of “fracture” to “compromise”, is inconsistent with the ordinary usage of the interposing words “as with”. Second, the contention for a technical meaning is, in substance no different from reading in an adjectival qualification of the noun “fractures”. Third, the same argument was run, and lost, in Serwylo, both before Kaye J and on an application for leave to appeal.[21]
[21]Ibid 452–453 [76]–[79].
The consequence of the judgment of the majority in Elsdon (No 2) is that the term ‘fracture’ as used in DRE Cervicothoracic Category IV Structural Inclusion (2) is to be given its ordinary, lexical, defined meaning. It is not to be given a specialised medical meaning, nor is it to be read as excluding transverse process fractures which are said not to compromise multilevel spine segment structures.
Maxwell P, in dissent, noted that there was no consideration in Serwylo of a class of fractures which, though present at more than one level, could never constitute multilevel spine segment structural compromise. It was plain enough that the phrase ‘as with fractures or dislocations’ was intended to denote instances of structural compromise. The clinician who drafted the relevant part of the Guides could be taken to have had in mind only those categories of fractures or dislocations which had the capacity to produce or constitute structural compromise.[22]
[22]Ibid 443–444 [34]–[38].
The meaning of the expression ‘fracture’ in the context of DRE Cervicothoracic Category IV was considered in the decision of Tan v Gibbons.[23] In that case, Dr Tan, a neurosurgeon, sought judicial review of the decision of a medical panel regarding the whole of body impairment following the performance of an operation by Dr Tan. The patient had a prolapsed disc at C5–6 in her neck. However, Dr Tan removed the disc at C6–7 level, and fused the joining vertebral bodies at C6–7. Another operation was necessary the following day.
[23][2016] VSC 652 (Ginnane J).
The medical panel decided that the procedures undertaken by Dr Tan over the course of the two separate interventions resulted in multilevel operative factors, and constituted a Structural Inclusion within the meaning of DRE Cervicothoracic Category IV. There had been two separate operative interventions resulting in a two-level spinal fusion. This had involved the removal of end plates from adjacent vertebral bodies, compromising bone integrity at multiple levels, which the panel considered to be consistent with operative fracture of vertebral body end plates to facilitate fusion. As a result, the panel decided that there were multilevel operative fractures. Fractures at more than one level satisfied the criteria of Structural Inclusion (2) regardless of the actual severity of the fracture, its capacity to disrupt the spinal canal or otherwise compromise the structural integrity of the spine.
In the event, Ginnane J set aside the panel’s determination as it had wrongly assumed that the end plates were removed when this was not the case.
The first defendant sought to rely on the Tasmanian case of Jenkins,[24] where Tennent J considered an appeal from a tribunal hearing a claim for compensation which arose following a motor vehicle accident resulting in neck injury. Following the accident, a cervical laminoplasty from C4 to C7 was performed, including the surgical cutting the bony laminae forming the spinal canal using a high powered surgical drill. The surgery resolved the accident injury.
[24][2012] TASSC 22.
The parties disputed whether the cutting of the lamina on each side of the spine at four levels using a powered electric drill came within the meaning of the term ‘fracture’.
In upholding the Tribunal’s decision, Tennent J held that the term ‘fracture’ was 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 a surgical cutting, they could clearly have done so.[25]
[25]Ibid [47].
The decision of Tennent J in Jenkins, sitting in the Supreme Court of Tasmania, precedes in time the judgment in Elsdon (No 2). I am bound to apply the reasons and conclusions upheld in Elsdon (No 2), as a decision of the Court of Appeal, the superior court in Victoria. As a result, the decision of Tennent J in Jenkins is of limited assistance as it does not apply the meaning of ‘fractures’ adopted in Elsdon (No 2).
Legal assistance sought by the panel
The panel appreciated at an early stage that it required legal assistance as to whether surgical treatment resulting in breaks in the continuity of the bone should be considered a fracture for the purpose of applying Category IV of the Guides. Both parties sought to provide assistance to the panel in the form of written submissions. However, neither submission drew the panel’s attention to the decision of the Court of Appeal in Elsdon (No 2), or made clear the test that must be satisfied if Structural Inclusion (2) is to apply.
What is the test that the panel was required to apply?
In Elsdon (No 2), the majority of the Court of Appeal held that the meaning to be given to the word ‘fractures’ in DRE Lumbosacral Category IV Structural Inclusion (2) was its ordinary, lexical, defined meaning.[26] They accepted the ordinary meaning as found in the Macquarie Dictionary. This is the meaning of ‘fractures’ or ‘fracture’ in DRE Lumbosacral Category IV and DRE Cervicothoracic Category IV that stands to be applied in panel decisions and proceedings in Victoria.
[26]Elsdon (No 2) (2013) 42 VR 434, 452–453 [76]–[79] (Bongiorno JA and Dixon AJA).
In Elsdon (No 2), the majority held that the ordinary meaning of ‘fractures’ is not to be restricted in meaning in that case to exclude transverse process fractures from the scope of Structural Inclusion (2). They decided that the expression ‘fractures’ was not to be given a specialist medical meaning. They found that there was no accepted specialist medical meaning, nor was there any technical or specialised meaning different from the ordinary meaning of the expression ‘fractures’.
I accept, as submitted by the plaintiff, that the ordinary meaning of the word ‘fracture’ is not to be qualified by restriction or limitation derived from the origin or cause of the breakage or breach. It does not matter, and it is not material that the fracture arose out of, or was caused by operative intervention provided the intervention arose as a consequence of an accepted injury. This follows from the accepted meaning to be given to the word ‘fracture’ and does not represent some imputation or implied criticism of the surgical work undertaken or procedures adopted. Significantly, the first defendant did not contend before me that the occurrence of the breach during surgery to address an accepted injury had any significance as far as the application of DRE Cervicothoracic Category IV Structural Inclusion (2) is concerned.
This is not to say that the application of the ordinary meaning of ‘fracture’ in any given situation is easy or free from doubt. It is often a matter of fact and degree. It is clearly a determination that will commonly call for the professional knowledge, experience and wisdom of the panel. In the case before me, the parties did not agree on the procedure actually undertaken by the treating surgeon, or what had happened during surgery, let alone how the surgical outcome was to be classified.
In a difficult case, the decision as to whether or not there is a fracture can only be made by expert decision-makers, such as the members of the panel, who understand the surgical procedures, techniques and their ramifications.
As I have said, the decision as to whether there is or is not a breakage or breach of a bone may be a matter of fact and degree. Relevant facts that assist in the decision where an attachment is made to a bone include:
(a)the nature of the bone or bony surface to which the attachment is made;
(b)the extent of preparation, removal or perforation of the bone;
(c)the nature of the attachment; and
(d)the physical outcome of the procedure.
In the present case, the work undertaken on the end plates is relevant, and must be taken into account. The plaintiff characterises what was done as partial removal – the defendant as ‘smoothing’.
Although analogies are imperfect and sometimes unhelpful, they can also serve to illustrate. If picture hooks are attached to a solid brick wall to display a work of art, it would not be said in ordinary parlance that the wall had been broken or breached, as it remains solid and intact. On the other hand, the use of a power drill to penetrate a plaster wall may well result in a breakage or breach of the wall. Likewise, the use of sandpaper to remove irregularities and smooth down a wall to prepare for repainting would not, in ordinary parlance, be regarded as a fracture or breach of the wall.
Did the panel apply the ordinary meaning of ‘fractures’ when deciding whether Structural Inclusion (2) applied?
The panel determined that the procedure ‘does not cause a fracture in the medical sense of the word because there is no instability…’ There was ‘resultant increased unity in the spine’ and increased stability. Importantly, the panel was of the opinion that ‘surgical cutting, separation, division or breaches in continuity of bones as a result of surgical treatment to the worker’s cervical spine should not be regarded as fractures’ for the relevant purpose. They were of the view that there was no fracture in the medical sense because there was no resulting instability, and the surgery augmented spinal structure.
I accept the plaintiff’s submissions that it does not appear that the panel applied the ordinary meaning of the word ‘fracture’ when it made its determination. This is not surprising as there is nothing in the material before me that suggest that the panel’s attention was drawn to Elsdon (No 2). The panel referred to the medical sense of the word ‘fracture’, but did not expand on what this was. It did not advert to the ordinary meaning of the word ‘fracture’. The panel held that there could not be a fracture resulting from a successful medical intervention, and was swayed by the fact that the suggested break in the continuity of bone stemmed from a surgical process. However, it was not to the point that the spinal fusion gave rise to a strengthened spine – the issue was whether there was a fracture. In my view, having regard to the judgment of the majority of the Court in Elsdon (No 2), which I am bound to apply (even if not referred to the panel), considerations of the origin or purpose underlying the fracture are not relevant and should not be taken into account. The Guides themselves make no reference to origin or purpose.
As the plaintiff said in his submissions in reply, the medical panel’s determination cannot stand in the face of the Court of Appeal’s decision in Elsdon (No 2).
A failure to apply to apply the right test, or the consideration of irrelevant considerations, constitutes jurisdictional error and invalidates the panel’s decision.[27]
[27]See Craig v South Australia (1995) 184 CLR 163, 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); Wingfoot Australia Partner Pty Ltd v Kocak (2013) 252 CLR 480, 492 [26] (French CJ, Crennan, Bell, Gageler and Keane JJ).
Fracture or smoothing?
The first defendant submitted that, in any case, there was no fracture here because the smoothing of the surface or lamina of C5 and C6 to create a bed for the plate and the insertion of screws to secure the plate did not constitute a fracture.
This submission is based on the nature and manner of the procedure and the physical outcome, rather than the test applied by the panel. It seeks to say that when the correct test is applied to the factual situation, it will be found that there is no breakage or breach.
As I have said, this is a matter for the medical panel to consider. The submission may be soundly based, but the decision is one to be made by a medical panel well versed in the procedure that was undertaken and the surgical outcome. It is not a submission that should be upheld in this Court on an O 56 application, but one that should be considered by a medical panel.
Conclusion
In the circumstances, I accept the submissions of the plaintiff that the panel has failed to apply the correct test and was wrongly influenced by the irrelevant consideration that the fracture or breach (if there was one) may have been caused by successful surgical treatment.
It follows that the determination of the panel must be quashed and the claim remitted to a differently constituted panel for determination.
SCHEDULE OF PARTIES
| YOUSUFULLAH MOHAMMED | Plaintiff |
| WHITTLESEA CITY COUNCIL | First Defendant |
| ASSOCIATE PROFESSOR PETER GIBBONS (Convenor of Medical Panels) | Second Defendant |
| MEDICAL PANEL CONSTITUTED BY ASSOCIATE PROFESSOR PAUL McCRORY, DR SUSANNE HOMOLKA, DR ANTHONY SHEEHAN, DR DIANA KOREVAAR and MR RODNEY SIMM | Third Defendants |
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