| 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…
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- Case
- [2018] VSC 566
- Decision Date
CaseChat Overview and Summary
The central legal issues in this case involved the interpretation of the term ‘fracture’ and whether the origin or cause of the fracture was relevant in determining its classification. The court had to decide whether the American Medical Association Guides to the Evaluation of Permanent Impairment should be interpreted restrictively, and whether the term ‘fracture’ should be limited in its meaning. Additionally, the court considered the applicability of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) and the Accident Compensation Act 1985 (Vic).
The Supreme Court concluded that the term ‘fracture’ should not be interpreted restrictively, and that the origin or cause of the fracture was not relevant in determining its classification for workers' compensation purposes. The court held that the fractures in question constituted a multilevel motion segment structural compromise, and thus, the appellant was entitled to a higher impairment rating. This interpretation aligned with the guidelines provided by the American Medical Association Guides to the Evaluation of Permanent Impairment.
The final orders of the court included a recalculation of the appellant’s impairment rating based on the correct classification of his spinal condition, along with appropriate compensation adjustments. The respondent was directed to review and revise the appellant's workers' compensation entitlements accordingly.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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