Whittlesea City Council v Mohammed
[2019] VSCA 118
•30 May 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0136
| WHITTLESEA CITY COUNCIL | Applicant |
| v | |
| YOUSUFULLAH MOHAMMED & ORS (according to the attached Schedule) | Respondents |
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| JUDGES: | BEACH, KYROU and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 May 2019 |
| DATE OF JUDGMENT: | 30 May 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 118 |
| JUDGMENT APPEALED FROM: | [2018] VSC 566 (Garde J) |
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ACCIDENT COMPENSATION – Workers compensation – Assessment of degree of whole person impairment – AMA Guides to the Evaluation of Permanent Impairment (4th edition) – Spinal injury – Meaning of ‘fracture’ in AMA Guides – Whether ‘fracture’ has ordinary meaning, or technical/medical meaning – Victorian WorkCover Authority v Elsdon (2013) 42 VR 434 applied – Accident Compensation Act 1985, ss 91 and 98C.
WORDS AND PHRASES – ‘Fracture’ – ‘Multilevel fracture’.
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| APPEARANCES: | Counsel | Solicitors |
| For the applicant | Mr P H Solomon QC with Mr R Kumar | Hall & Wilcox |
| For the first respondent | Mr A D B Ingram with Mr L B R Allan | Arnold Thomas & Becker |
| For the second to seventh respondents | No appearance |
BEACH JA
KYROU JA
T FORREST JA:
This case concerns the meaning of the word ‘fracture’ in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (‘the AMA Guides’). At issue is whether the word is to be given its ordinary meaning, or some medical or technical meaning. The resolution of this issue affects the entitlement of an injured worker to compensation under the provisions of the Accident Compensation Act 1985 (‘the Act’).
Background
On 8 May 2014, Yousufullah Mohammed suffered an injury to his neck in the course of his employment with the Whittlesea City Council (‘the employer’). His injury progressed to a point where, on 1 February 2016, he underwent an anterior cervical discectomy and fusion with partial vertebrectomy at the level of C5/6.
As a result of his injury, Mr Mohammed made an application for impairment benefits pursuant to s 98C of the Act. Ultimately, the assessment of his degree of permanent whole person impairment fell to be determined by a medical panel pursuant to the AMA Guides.[1]
[1]See ss 91 and 98C of the Act, and the definition of ‘AMA Guides’ in s 3 of the Workplace Injury Rehabilitation and Compensation Act 2013 (which definition is given operation in the Act by s 5(2) of the Act).
In assessing Mr Mohammed’s degree of permanent whole person impairment, the medical panel who examined him were required by the terms of the AMA Guides to determine whether Mr Mohammed had suffered ‘multi-level fracture’. The issue for the panel was whether the surgery performed on Mr Mohammed, including the breaking of his vertebrae at C5 and C6 to insert screws, gave rise to fractures at those levels. The panel determined this issue against Mr Mohammed, stating:
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 inter-body 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.
On 3 October 2018, following judicial review proceedings brought by Mr Mohammed against the employer and the medical panel, a judge of the Trial Division made an order in the nature of certiorari quashing the medical panel’s determination, and an order that the matter be remitted to a differently constituted medical panel for determination.[2]
[2]Mohammed v Whittlesea City Council [2018] VSC 566 (‘Reasons’).
The judge quashed the medical panel’s determination because he held that this Court’s decision in Victorian WorkCover Authority v Elsdon[3] held that the word ‘fracture’ in the AMA Guides was to be given its ordinary meaning rather than some technical or medical meaning. The judge went on to say:
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.[4]
[3](2013) 42 VR 434 (‘Elsdon (No 2)’) (Bongiorno JA and Dixon AJA, Maxwell P dissenting).
[4]Reasons [59].
The employer now seeks leave to appeal from the judge’s orders on the following proposed grounds:
1.The judge misunderstood and/or misapplied [Elsdon (No 2)] in respect of the meaning of ‘fracture’ in the AMA Guides.
2.The judge misunderstood and/or misapplied [Elsdon (No 2)] in respect of the relevance of origin and purpose underlying a purported ‘fracture’ in the AMA Guides.
The issues in this Court
In oral argument, senior counsel for the employer refined the employer’s case by saying that if this Court determines, contrary to the employer’s submissions, that the word ‘fracture’ in the AMA Guides has its ordinary meaning, then the application for leave to appeal will fail. Moreover, if this Court holds, again contrary to the employer’s submissions, that the ratio of Elsdon (No 2) is that the word ‘fracture’ is to be given its ordinary meaning, then again the application for leave to appeal will fail. The employer’s case in this Court was that:
·Elsdon (No 2) did not hold that the word ‘fracture’, in the AMA Guides, was to be given its ordinary meaning;
·alternatively, any statement in the majority judgment in Elsdon (No 2) that might be construed as being to that effect was merely obiter; and
·there was no error in the panel considering ‘the medical sense’ of the word ‘fracture’.
In submitting that there was no error in the panel considering ‘the medical sense’ of the word ‘fracture’, the employer relied upon the dissenting judgment of Maxwell P in Elsdon (No 2).
Mr Mohammed’s case in this Court was that the judge was correct when he relied upon the majority judgment in Elsdon (No 2) to hold that the medical panel erred in not giving the word ‘fracture’ its ordinary meaning.
The AMA Guides
The relevant part of the AMA Guides, pursuant to which Mr Mohammed’s cervical spine injury fell to be assessed, was section 3.3 of chapter 3. That section identified eight categories of cervicothoracic spine impairments as follows:[5]
[5]See in particular Table 73 on p 3/110.
DRE[6] Impairment Category
Description
% Impairment of the Whole Person
I Complaints or symptoms 0 II Minor impairment: clinical signs of neck injury without radiculopathy or loss of motion segment integrity 5 III Radiculopathy: evidence of
radiculopathy is present
15 IV Loss of motion segment integrity or multilevel neurologic compromise 25 V Severe upper extremity neurologic compromise: single-level or multilevel loss of function 35 VI Cauda equine syndrome without bowel or bladder impairment 40 VII Cauda equine syndrome with bowel or bladder impairment 60 VIII Paraplegia 75 [6]Diagnosis-related estimates.
The panel concluded that the appropriate impairment category for Mr Mohammed was DRE Cervicothoracic Category II. In respect of that category, the AMA Guides provided:
Description and Verification: The history and findings are compatible with a specific injury and include intermittent or continuous muscle guarding observed by a physician, nonuniform loss of range of motion … , or nonverifiable radicular complaints. There is no objective evidence of radiculopathy or loss of structural integrity.
Structural Inclusions: (1) Less than 25% compression of one vertebral body; (2) posterior element fracture without dislocation (not developmental spondylolysis) is present and healing has occurred without loss of structural integrity or radiculopathy. A patient with a spinous or transverse process fracture with displacement should be placed in this category, because the fracture does not disrupt the spinal canal.
Mr Mohammed’s case is that the panel should have determined his injury to fall within DRE Cervicothoracic Category IV. In respect of that category, the AMA Guides provided:
Description and Verification: 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.
In the present case, when considering DRE Cervicothoracic Category IV, the critical word is the word ‘fracture’, in the phrase ‘multilevel motion segment structural compromise without residual neurologic motor compromise, for example, multilevel fracture or dislocation’.
Relevant authority
In argument, we were taken to four decisions that have dealt with the construction of s 3.3 of chapter 3 of the AMA Guides. Those decisions were Transport Accident Commission v Serwylo, both at first instance[7] and on appeal,[8] Elsdon v Victorian WorkCover Authority[9] and, on appeal, Elsdon (No 2).[10] While Serwylo (No 1), Serwylo (No 2) and Elsdon (No 1) provide context in relation to the parties’ submissions, having regard to the contentions advanced by the parties, the critical decision for present purposes is Elsdon(No 2).
[7]Transport Accident Commission v Serwylo [2010] VSC 421 (‘Serwylo (No 1)’).
[8]Transport Accident Commission v Serwylo [2011] VSCA 305 (‘Serwylo (No 2)’).
[9][2012] VSC 347 (‘Elsdon (No 1)’).
[10](2013) 42 VR 434.
Before turning to Elsdon (No 2), we should note that the decisions in Elsdon and Serwylo did not concern that part of the AMA Guides with which the present case is concerned. In the Serwylo and Elsdon decisions, the impairment category under consideration was DRE Lumbosacral Category IV — rather than DRE Cervicothoracic Category IV. It is pertinent to note this distinction because there are differences in the language used in the AMA Guides to describe structural inclusion (2) of DRE Lumbosacral Category IV, from that used to describe structural inclusion (2) of DRE Cervicothoracic Category IV. As we have already observed, structural inclusion (2) of Cervicothoracic Category IV is:
Multilevel motion segment structural compromise without residual neurologic motor compromise, for example, multilevel fracture or dislocation.
Whereas, structural inclusion (2) of DRE Lumbosacral Category IV is:
Multilevel spine segment structural compromise, as with fractures or dislocations, without residual neurologic motor compromise.
While the differences in language are obvious, no party in this Court (or at first instance) sought to submit that these differences were material to the issues presently before this Court. The parties were content to proceed on the basis that what was decided in the Serwylo and Elsdon decisions in relation to DRE Lumbosacral Category IV was relevantly applicable in the present case in respect of DRE Cervicothoracic Category IV.
We turn now to Elsdon (No 2).
Elsdon (No 2) was an appeal from a decision in the Trial Division (Elsdon(No 1)) on the question of whether expert medical evidence was admissible to aid in the construction of the word ‘fractures’ in the phrase ‘multilevel spine segment structural compromise, as with fractures or dislocations’ in that part of the AMA Guides dealing with DRE Lumbosacral Category IV.
Mr Elsdon suffered an undisplaced fracture to the right transverse process of L1. A central issue in his case was whether that fracture was a ‘fracture’ within the meaning of that term in DRE Lumbosacral Category IV of the AMA Guides. At trial, the Victorian WorkCover Authority (‘the VWA’) sought to rely upon expert medical evidence that a fracture of the transverse process could never result in ‘spine segment structural compromise’, and thus was not a fracture coming within structural inclusion (2) of DRE Lumbosacral Category IV. The trial judge, however, ruled that the expert evidence sought to be relied upon by the VWA was irrelevant, and therefore inadmissible.
On appeal, the majority held that the trial judge correctly approached the construction of the relevant structural inclusion as a question of law — citing Kyrou J in H J Heinz Co Australia Ltd v Kotzman.[11]
[11][2009] VSC 311 [36]–[40].
The majority then referred to the submissions that had been made to them about Serwylo (No 2). Their Honours then said:
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.[12]
[12]Elsdon (No 2) (2013) 42 VR 434, 450 [67].
In relation to a submission that the word ‘fractures’ had a medical or technical meaning, the majority said:
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.[13]
[13]Ibid 452–3 [76].
After analysing Serwylo (No 1) and Serwylo (No 2), the majority said that it was plain that the courts in those cases had ‘understood the word “fractures” in its ordinary, lexical, defined meaning’.[14] The majority went on to say, however, that there was ‘nothing said in Serwylo that was affected if “fractures” had a meaning other than its ordinary meaning.’[15]
[14]Ibid 453 [77].
[15]Ibid.
The majority then dealt with a submission made by the VWA that, to constitute a fracture within the meaning of structural inclusion (2) of Cervicothoracic Category IV, it was necessary for the putative fracture to involve some structural compromise. In rejecting that submission, the majority said:
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.[16]
[16]Ibid 453 [79].
Consideration
In support of its submission that Elsdon (No 2) did not hold that the meaning to be given to the word ‘fractures’ in the AMA Guides was the ordinary, lexical meaning of that word, the employer relied upon the statement of the majority that the meaning of ‘fractures’, simpliciter, was not in issue in that case.[17] This submission must be rejected.
[17]Ibid 450 [67].
While the majority did not purport to state the ordinary lexical meaning of the word ‘fractures’ (that is, they did not state that they preferred one dictionary definition over another), the majority plainly rejected any technical or medical meaning of the word. The submission that the word bore a technical or medical meaning was rejected in terms, and also rejected by their Honours’ conclusion that there was no issue of fact arising in the construction of structural inclusion (2) of DRE Lumbosacral Category IV of the AMA Guides. As their Honours put it:
The issue of construction before the primary judge was a question of law that did not raise any issue of a medical definition of ‘fractures’ with a specialised meaning. The primary judge was right to perceive the proposed medical evidence as doing no more than following the legal debate. The evidence was irrelevant and was rightly excluded.[18]
[18]Ibid 454–5 [85].
As the employer did not seek to contest the correctness of the majority’s conclusion in Elsdon (No 2), or to overturn that decision, the employer’s proposed grounds of appeal must be rejected.
Conclusion
While we will grant leave to appeal, the appeal will be dismissed.
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SCHEDULE OF PARTIES
S APCI 2018 0136
BETWEEN
WHITTLESEA CITY COUNCIL Applicant
and
YOUSUFULLAH MOHAMMED First Respondent
A/PROF PETER GIBBONS Second Respondent
A/PROF PAUL McCRORY Third Respondent
DR SUSANNE HOMOLKA Fourth Respondent
DR ANTHONY SHEEHAN Fifth Respondent
DR DIANA KOREVAAR Sixth Respondent
MR RODNEY SIMM Seventh Respondent
6
0