Whittlesea City Council v Mohammed - [2019] VSCA 118

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 (4^th 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,…

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: [2019] VSCA 118
Decision Date: 30 May 2019

CaseChat Overview and Summary

The case of Whittlesea City Council versus Mohammed was heard by the Supreme Court of Victoria, where the central dispute concerned the assessment of the degree of whole person impairment following a spinal injury sustained by the plaintiff. The plaintiff sought compensation under the Accident Compensation Act 1985, and the pivotal issue was the interpretation of the term 'fracture' in the AMA Guides to the Evaluation of Permanent Impairment (4th edition). Specifically, the court needed to determine whether 'fracture' should be given its ordinary meaning or a technical/medical meaning, and how this interpretation affects the assessment of the plaintiff's impairment.

The court was required to decide on the appropriate definition of 'fracture' and its impact on the plaintiff's entitlement to compensation. The plaintiff argued for a broader, ordinary meaning of 'fracture', while the defendant, Whittlesea City Council, contended that the term should be interpreted in a narrower, technical/medical sense. This debate hinged on the implications of previous case law, specifically the decision in Victorian WorkCover Authority v Elsdon, where the court had considered the ordinary meaning of medical terms in the context of workers' compensation.

In delivering its judgment, the court applied the principles from Elsdon and examined the plain language of the relevant statutory provisions, particularly sections 91 and 98C of the Accident Compensation Act 1985. The court concluded that 'fracture' should be interpreted according to its ordinary meaning, which encompasses a broader range of injuries compared to a purely technical/medical interpretation. This decision was based on the principle that legislative provisions should be interpreted in a way that aligns with their ordinary meaning unless a contrary intention is evident. As a result, the plaintiff's claim for a higher degree of whole person impairment was upheld.

The final orders of the court were that the term 'fracture' in the AMA Guides should be interpreted in accordance with its ordinary meaning, and the plaintiff's entitlement to compensation was adjusted accordingly. The court found that the plaintiff's spinal injury warranted a higher degree of whole person impairment, and this was reflected in the final compensation awarded. The Whittlesea City Council was ordered to pay the increased compensation to the plaintiff.

Orders