Can you aggregate injuries to the knee and ankle to establish serious injury? Victorian WorkCover Authority v Brassington, Gregory [2021] VSCA 236

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By Stuart Eustice, Partner and Emma Bing, Lawyer

Mr Brassington (plaintiff), a corrections officer for the Department of Justice and Community Safety in Victoria suffered injury on 26 July 2018. At that time he was walking through a poorly lit area when he collided with a metal chair which was bolted to the floor, suffering injuries to his right knee and right ankle.

Brassington sought leave pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act) to commence proceedings at common law. For leave to be granted the injury(s) must be considered ‘serious’ within the definition of the Act.

The Victorian WorkCover Authority (VWA) submitted Brassington could not aggregate his right ankle and right knee injuries to establish an overall loss of function of the right leg. In the alternative the VWA submitted neither injury alone satisfied the definition.

At the application on 10 February 2021 the Court concluded his knee and ankle injuries could be aggregated into a single impairment or loss of function of the right lower limb, which when so aggregated satisfied the definition. Alternatively, if the two injuries could not be aggregated each of the injuries separately met the definition.

This decision was appealed by the VWA. The question brought to the Court of Appeal was whether the plaintiff could so aggregate the right ankle and right knee injury.

Decision

At the initial application, the Court concluded the facts demonstrated a circumstance where two injuries impaired one body function, for a number of reasons. Firstly, the plaintiff’s injuries arose from one incident. Secondly, the two injuries were so closely connected as to impair the one body function which accorded with the plaintiff’s treating medical practitioners having treated the ankle and knee injuries as the one impairment affecting his right lower limb.

The Court of Appeal focused on its own earlier decision of Lu v Mediterranean Shoes Pty Ltd in which Mr Lu had sought to aggregate his injuries to the right arm. In July or August of 1995 Lu had begun experiencing pain in his right elbow, and then separately on 4 September 1995 was struck on the right shoulder. The issue was whether the elbow could be aggregated with his shoulder for the purposes of establishing whether he had suffered a ‘serious long-term impairment’ or loss of a body function. The Court of Appeal held Mr Lu could not so aggregate his injuries as it was not permissible to combine an unrelated elbow injury for the purpose of showing he had suffered a serious impairment of function of the arm.

The case of Transport Accident Commission v Zepic was referred to, in which the court was required to consider whether the function of the lumbar spine and the cervical spine are two separate body functions or could be aggregated. The court held the occasion for challenging the ability of a plaintiff to contend that impairments of the cervical and lumbar spines could be aggregated had long since passed. Following Zepic, if a leg or an arm is injured in two or more places, in the one incident or set of compensable circumstances and the function of that leg or arm is thus impaired, there is no principled reason why those injuries cannot be aggregated.

In applying the provisions of s 325 of the Act, in an application under s 335(2)(d), the Court of Appeal found it important to remember these provisions are gateway provisions, and they do not involve any relevant determination affecting the assessment of any damages which might be assessed in a subsequent common law proceeding. A sensible, pragmatic and consistent approach should be taken in relation to the identification of an appropriate body function, in any application in which it is sought to establish that a particular body function has suffered the requisite impairment or loss of function as a result of a particular incident or set of compensable circumstances.

The Court of Appeal dismissed the VWA’s appeal, upholding that contentions immediately above. However, they did not think the medical evidence had assisted in resolving the dispute between the parties.

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