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No break from Elsdon: VSCA stresses the meaning of ‘fracture’

Introduction

The recent Victorian Supreme Court of Appeal decision of Whittlesea City Council v Mohammed1 (Whittlesea) has clarified the application of principles that may enable injured workers to claim higher impairment benefit (IB) monetary awards within their workers compensation claims. This article briefly summarises the IB scheme in respect of spinal impairments and the earlier decision of VWA v Elsdon2 and then examines the consequences of Elsdon and Whittlesea for workers seeking IB lump sums with respect to spinal fractures. The decision in Whittlesea potentially increases the ability of workers to obtain higher WPI assessments with less reference to their actual level of physical impairment.

The Scheme

In the Victorian workers compensation jurisdiction a worker may elect to lodge a claim with the Victorian WorkCover Authority or a self-insurer for a lump sum IB payment. The calculation of the impairment figure on which the payment is based is performed pursuant to the AMA Guides3, and broadly speaking, assigns a whole person impairment (WPI) percentage to a worker, referable to the seriousness of their injuries and the corresponding functional impact on them.

IB claims potentially arise for any damaged system of the body but spinal impairment claims are common. The percentage of WPI that a worker will be awarded for spinal injuries is assessed with reference to various parts of Chapter 3 of the AMA Guides. The WPI percentage awarded (which also corresponds to increasing monetary awards) is based on satisfying increasingly onerous ‘Description and Verification’ as well as ‘Structural Inclusions’ criteria. A worker need only satisfy the ‘Description and Verification’ or the ‘Structural Inclusions’ criteria to reach the enter higher categories for WPI awards.

Relevant to the decision in Whittlesea, the below table shows the escalating WPI percentage awards for the cervical spine as set out in the AMA Guides:

DRE Category WPI Description & Verification Structural Inclusions
DRE 1 0% No significant clinical findings. None
DRE 2 5% A specific injury or illness; and

  • Muscle guarding; or
  • Non uniform loss of motion; or
  • Non-verifiable radicular complaints.
  • Less than 25% compression of one vertebral body; or
  • Healed posterior element fracture without dislocation; or
  • Spinous process fracture with displacement; or
  • Transverse process fracture with displacement.
DRE 3 15%
  • Loss of relevant reflexes; or
  • Unilateral atrophy with loss of 2cm circumference above or below the elbow; or
  • Nerve conduction studies showing nerve root compromise meeting the specification in Table 71, Point 4.
  • 25% to 50% compression of one vertebral body; or
  • Healed posterior element fracture with displacement disrupting the spinal canal.
DRE 4 25%
  • Loss of motion or structural integrity (which must meet specific criteria) with muscle guarding and pain; or
  • Loss of relevant reflexes involving bilateral or multilevel nerve roots; or
  • Unilateral atrophy with loss of 2cm or more circumference above or below the elbow involving bilateral or multilevel nerve roots; or
  • Nerve conduction studies showing bilateral or multilevel nerve root compromise (which must meet specific criteria).
  • Greater than 50% compression of a vertebral body without residual neurological compromise; or
  • Multilevel  motion segment structural compromise without residual neurological motor compromise, for example, multilevel fracture or dislocation.

As is demonstrated in the above table, ‘Structural Inclusions’ can include, for example, whether the worker has fractured various parts of their spine. Increasingly severe and widespread fractures escalate the WPI percentage that the worker will be awarded. In this way, the scheme functions as expected, intending to award higher WPI percentages to workers with more severe injuries.

The existing law: VWA v Elsdon

A situation that often arises is where the worker has, technically, satisfied the ‘Structural Inclusion’ requirement for a higher award of WPI, but in practice, is largely uninjured.

This question had arisen previously, and was dealt with, in the 2013 Victorian Supreme Court of Appeal decision of VWA v Elsdon. In this decision the Court was tasked with examining a minor fracture to the transverse process of the spine.

The majority of the Court expressed the principle that the relevant process in determining impairment under the AMA Guides was simply to consider whether a ‘fracture’ has occurred in an ‘ordinary’ sense of the word (separate from any medical or expert evidence reflecting on the meaning of a ‘fracture’), even if the fracture was minor and was not capable of causing structural compromise.

The practical result of the majority judgment was that, in essence, a worker could satisfy the higher level ‘Structural Inclusions’ with minor fractures and limited physical lifestyle impairments.

The latest decision: Whittlesea City Council v Mohammed

This decision involved a worker, Yousufullah Mohammed, who had sustained multiple neck fractures as a necessary element of undergoing a neck fusion. In other words, the fractures were not sustained in an workplace incident – they were made by the worker’s surgeon as part of the fusion procedure. The worker lodged an IB claim that eventually fell for determination by a Medical Panel. The Medical Panel awarded the worker a lower WPI for his neck and considered the neck fractures that were a part of his surgery were not compensable.

The decision of the Medical Panel was appealed by the worker to the trial division of Victorian Supreme Court, where Justice Garde found in his favour, quashing the Medical Panel’s decision. The employer appealed Justice Garde’s decision to the Court of Appeal.

The Court of Appeal, in a unanimous decision, decided that, contrary to the employer’s submissions, the majority decision in VWA v Elsdon had indeed already decided that the word ‘fracture’ should not be given any technical or medical meaning. Accordingly, the origin or purpose underlying a fracture was not relevant and should not be taken into account, meaning that medically induced fractures resulting from corrective surgery would entitle a worker to the higher percentages of WPI.

Conclusion and implications

We do not yet know whether the employer will appeal this decision to the High Court. On the assumption that it will not be appealed, this decision results in an interpretation of the AMA Guides that is more generous for workers and that will facilitate higher WPI percentages.

Victorian WorkCover claims agents, self-insurers and claims managers will need to be aware that, in addition to minor fractures, therapeutic fractures to the spine will now entitle workers to higher than expected WPI percentages. Furthermore, in a spinal injury claim, where a common law damages proceeding is being explored by the worker, there will be greater scope for a worker to obtain a deemed serious injury certificate, based on their combined WPI levels.

The implications of the decision will also be felt acutely in the impairment benefit scheme as applied by the Transport Accident Commission. If an injured motorist can more readily obtain higher WPI percentages due to spinal injuries there is a greater chance of obtaining, for example, a deemed serious injury certificate or achieving the 50% threshold for ongoing loss of earning capacity payments.

This article was written by David Guthrie, Partner and Dylan Younane, Senior Associate.

David Guthrie

P: +61 3 8644 3626

E: dguthrie@hwle.com.au


1[2019] VSCA 118 (30 May 2019)
2[2013] VSCA 235
3American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition)

Important Disclaimer: The material contained in this publication is of a general nature only and is based on the law as of the date of publication. It is not, nor is intended to be legal advice. If you wish to take any action based on the content of this publication we recommend that you seek professional advice.