Victorian WorkCover Authority v Elsdon

[2013] VSCA 235

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0164
VICTORIAN WORKCOVER AUTHORITY	Appellant
v
STEVEN ELSDON	First Respondent
and
ASSOCIATE PROFESSOR PETER GIBBONS	Second Respondent
and
DR ROY KARNA	Third Respondent
and
DR JOHN CRONIN	Fourth Respondent

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JUDGES	MAXWELL P, BONGIORNO JA and DIXON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 August 2013
DATE OF JUDGMENT	6 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 235
JUDGMENT APPEALED FROM	Elsdon v Victorian WorkCover Authority [2012] VSC 347 (Macaulay J)

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ACCIDENT COMPENSATION — Workplace accident — Impairment — Assessment — Medical Panel — American Medical Association Guides — Interpretation — Multilevel fractures of transverse process — Whether constituted ‘multilevel spine segment structural compromise’ — Whether Panel decision vitiated by jurisdictional error — Whether expert evidence admissible on question of construction of Guides — Appeal dismissed — Transport Accident Commission v Serwylo [2010] VSC 421 applied — Accident Compensation Act 1985 (Vic) s 91(1) — American Medical Association Guides to the Evaluation of Permanent Impairment (4^th ed). 

EVIDENCE — Expert evidence — Interpretation — Impairment assessment — American Medical Association Guides — Categories of spinal impairment — Whether technical terms — Whether used with specialised meaning — Whether expert medical evidence admissible to assist in construction of terms — Evidence Act 2008 (Vic) ss 55(1), 76(1), 79.

WORDS AND PHRASES — ‘As with fractures’, ‘fractures’.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr M F Fleming SC with Mr C P Young	Hall & Wilcox Lawyers
For the First Respondent	Dr I R Freckelton SC with Mr N R Dubrow	Slater & Gordon
For the Second, Third and Fourth Respondents	Mr A S Pillay	Moray & Agnew

MAXWELL P:

1. Assessments of permanent impairment under the Accident Compensation Act 1985 (Vic) (the ‘Act’) must be made in accordance with the AMA Guides to the Evaluation of Permanent Impairment (the ‘Guides’).  The question of the proper construction of the Guides is a question of law.

1. The present appeal raises the — apparently novel — question whether expert medical evidence is admissible to aid in the construction of technical words or phrases appearing in the Guides.  For reasons which follow, I consider that such evidence is admissible, and should have been received by the trial judge in the present case.  The appeal should be allowed and the matter remitted for re-hearing and the taking of the necessary evidence.

The decision of the Panel

1. Mr Elsdon was injured in June 2008, in the course of his employment.  He sustained a superior end plate fracture of L2 and a right transverse fracture of L1.  As a result of these fractures at multiple levels, he suffers from ongoing pain across his lower back, and his back movements are restricted.  Mr Elsdon was referred to a medical panel (the ‘Panel’) in June 2011, for an assessment of his degree of permanent impairment. 

1. The Panel’s opinion was that Mr Elsdon had a 5% whole person impairment resulting from the lower back injury.  The relevant…