Mohammed v Whittlesea City Council - [2018] VSC 566

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2018] VSC 566
Decision Date: 3 October 2018

CaseChat Overview and Summary

In the case of Mohammed v Whittlesea City Council, the appellant, a former employee of the respondent council, sought a review of the respondent’s decision to categorise his spinal impairment for the purposes of calculating workers’ compensation. The appellant contended that his multilevel spinal fractures constituted a multilevel motion segment structural compromise, warranting a higher impairment rating. The respondent argued that the fractures did not meet the criteria for the specified category of structural compromise. The case was heard in the Supreme Court of Victoria.

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