Brennan-Lim v Return to Work SA

Case [2017] SASCFC 105

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Civil)

BRENNAN-LIM v RETURN TO WORK SA

[2017] SASCFC 105

Judgment of The Full Court

(The Honourable Justice Parker, The Honourable Justice Lovell and The Honourable Justice Hinton)

18 August 2017

WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION - AMOUNT OF COMPENSATION DURING INCAPACITY - LUMP SUM PAYMENTS - SPECIFIC INJURIES - LIMB INJURIES

WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION - AMOUNT OF COMPENSATION DURING INCAPACITY - LUMP SUM PAYMENTS - PERMANENT IMPAIRMENT AND LOSS

WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - PROCEDURE - GENERALLY

WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - EVIDENCE - MEDICAL EVIDENCE

Appeal against a decision of the Full Bench of the Workers Compensation Tribunal.

The appellant sustained injuries when she suffered a fall during the course of her employment. In October 2011, the appellant underwent surgery for a total knee replacement of her right knee. In 2013, the appellant claimed lump sum compensation for non-economic loss arising from her injuries. The claims agent obtained a medical report from Dr Dobson. Dr Dobson assessed the appellant as having suffered a 15% whole person impairment (WPI) due to her right knee replacement. The appellant accepted the determination to award her $29,231 as compensation.

In March 2015, the appellant lodged an application with the Workers Compensation Tribunal disputing Dr Dobson’s previous 15% WPI assessment. Dr Dobson provided a revised WPI assessment of 20% for the appellant’s right knee impairment and 1% for scarring. The appellant relied on the evidence of two occupational physicians, Dr D’Onise and Dr Suyapto, who both assessed WPI at 32%. The Deputy President accepted Dr Dobson’s revised assessment and awarded lump sum compensation of $45,551. The appellant unsuccessfully appealed the Deputy President’s decision to the Full Bench of the Workers Compensation Tribunal on a question of law.

The appellant now appeals to this Court on three grounds:

1.  That the Deputy President provided inadequate reasons to support his finding that the appellant was mistaken when she testified her knee pain was constant, rather than intermittent;

2.  That the appellant was denied procedural fairness because she was not given an opportunity in her evidence to comment on the proposition that she was mistaken; and

3. That the Deputy President and the Full Bench erred in their construction of Table 17.35 of the WorkCover Guidelines for the evaluation of permanent impairment and section 43A(8)(b) of the Workers Rehabilitation and Compensation Act 1986 (SA) (Act).

Held per Parker J (Lovell and Hinton JJ agreeing), dismissing the appeal:

1. The appellant’s evidence that there had been no deterioration since 2013, combined with the evidence of all three assessors about fluctuations on the day of assessment supported the Deputy President’s conclusion that the appellant’s knee pain was intermittent, rather than constant (at [92]-[94]).The Deputy President’s reasons satisfy each of the requirements referred to in RESI Corporation v Munzer [2016] SASCFC 15 and were adequate (at [95]);

2.  The appellant…

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Brennan-Lim v Return to Work SA [2017] SASCFC 105
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[2017] SASCFC 105
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CaseChat Overview and Summary

The appellant, Ms Brennan-Lim, appealed to the Full Court of the Supreme Court of South Australia against a decision of the Workers Rehabilitation and Compensation Tribunal. The dispute concerned the assessment of lump sum compensation for non-economic loss arising from Ms Brennan-Lim's right knee injury, which had necessitated a total knee replacement. The core of the disagreement lay in the percentage of whole person impairment (WPI) attributed to her injury, which directly impacted the compensation amount.

The appeal raised three questions of law. Firstly, whether the Deputy President's reasons for concluding that the appellant had mistakenly testified about her knee pain being constant or intermittent were legally adequate. Secondly, whether the finding of mistaken testimony regarding constant pain was procedurally unfair, as the appellant was not given an opportunity to comment on the proposition that she was honest but mistaken. Thirdly, whether the Deputy President and the Full Bench erred in their interpretation of Table 17.35 of the WorkCover Guidelines for the evaluation of permanent impairment and section 43A(8)(b) of the *Workers Rehabilitation and Compensation Act 1986* (SA).

The Court considered the appellant's evidence, which included statements about experiencing "constant levels of mid-level to high-level pain" in her right knee, though she also acknowledged that the "very bad pain isn't there all the time" and that pain levels fluctuated depending on her activities. The Deputy President had relied on the assessment of Dr Peter Dobson, who had noted the pain as "intermittent" in his report, leading to a 20% WPI. The appellant contended that a higher WPI was warranted. The Court found that the Deputy President's reasons for preferring Dr Dobson's assessment, particularly regarding the interpretation of "intermittent" pain, were adequate in the context of the forensic contest. The Court also determined that the appellant had not been denied procedural fairness, as the issue of mistaken testimony was explored during cross-examination and the appellant had the opportunity to respond. Furthermore, the Court found no error in the construction of the relevant guidelines and legislation.

Consequently, the Full Court dismissed the appeal on all three grounds. The parties were to be heard as to costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Permission has been granted by a judge of this Court under s 86A of the Act to appeal on the following three questions of law:1Whether the reasons of the Deputy President for finding that the applicant mistakenly testified that her knee pain was constant or intermittent were adequate in law?2Whether the finding that the applicant was mistaken when she testified that she suffered constant pain was procedurally unfair in that she was not given an opportunity when giving her evidence to comment on the peculiar proposition that she was honest but mistaken in testifying that her pain was constant?3Whether the Deputy President and the Full Bench erred in the construction given to Table 17.35 of the WorkCover Guidelines for the evaluation of permanent impairment and s 43A(8)(b) of the Workers Rehabilitation and Compensation Act 1986 (SA)? Background The appellant was employed by De Poi Consulting Pty Ltd as a rehabilitation consultant. She is a registered nurse by profession. Her duties with De Poi related to the rehabilitation of injured workers. On 4 March 2004 she fell on a footpath when leaving a meeting that she had attended in the course of her employment. That fall resulted in a fracture of her right elbow, injury to her right wrist and, of present relevance, contusions to her left and right knees that aggravated underlying degenerative changes. Ultimately, due to ongoing problems with her right knee, the appellant underwent surgery in October 2011 for a total knee replacement. In 2013 the appellant claimed lump sum compensation for non-economic loss arising from her leg injuries under s 43 of the Act. Following that application, Employers Mutual Management Pty Ltd (EML), being the claims agent for what was then the WorkCover Corporation, sought a medical report from an orthopaedic surgeon and accredited assessor, Dr Peter Dobson. Dr Dobson had treated the appellant for her original injuries. He assessed the appellant as having suffered a 15% whole person impairment (WPI) due to her right knee replacement, a 0% WPI on account of the left knee injury and a 0% WPI on account of scarring. The assessments made by Dr Dobson were accepted by EML. On 9 December 2013 EML determined that the appellant was entitled to $29,231 by way of lump sum compensation for non-economic loss based upon the 15% WPI arising from her right knee injury. That amount was calculated by reference to the scale of entitlements that were fixed by the Workers Rehabilitation and Compensation Regulations 2010 that applied in 2011, i.e. at the time of the knee replacement surgery. The appellant accepted the determination made by EML and was paid the sum it had determined. In early 2015 the appellant was advised by her employer that it may not be able to continue her employment. She then sought legal advice about her compensation entitlements. Thereafter, on 30 March 2015 the appellant lodged an application with the Workers Compensation Tribunal under s 90 of the Act disputing the assessment of 15% WPI made by Dr Dobson. While the notice of dispute was well outside the limit of one month prescribed in s 90A(1) of the Act, an extension of time was granted by the Tribunal.

Evidence

Evidence Before The Court

It is necessary to refer in some detail to the evidence given before the Deputy President.The appellant’s evidence The appellant made a witness statement dated 28 August 2015. This statement was received as part of her evidence in chief. She stated at paragraph [60] that “even whilst I was not working during that part of 2013, I experienced continual pain in my right knee. … the pain remained there all of the time. It wasn’t always at the same level; but it was sufficient to cause me to feel anxious and upset about my future and my ability to engage in daily activities.” It is apparent from paragraphs [58] and [59] of the appellant’s statement that she was referring to a substantial, but unspecified, period of time during 2013 when she was not working. At paragraph [78] of her statement the appellant indicated that her symptoms in her right knee included “constant levels of mid-level to high-level pain and discomfort which is exacerbated by sitting or standing for moderate to long periods of time”. Her reference to constant mid to high level pain was not maintained in her oral evidence. Paragraph [78] also referred to “noticeable and painful swelling, particularly after prolonged use and walking”; “limping when in a lot of right knee pain” and “inflammation and aching in my knee”. At paragraph [81] the appellant stated “my right knee pain has caused me to have problems sleeping” and at paragraph [83] “my pain, discomfort and disability levels in my right knee is often far worse at the end of the day as compared to the beginning (depending on my activities) and the levels of pain, discomfort and disability caused by my right knee are often much worse at the end of the week as compared to the beginning”. During her examination in chief the appellant gave the following evidence:Q Can you tell us about the pain factor in relation to it?AThe pain factor? The cut glass feeling had definitely gone. It was much smoother when I bent my knee. That feeling of loose rubble in there is gone, but I still get the pain on both sides of the legQ So is that the right leg?AYes, the right leg medially and laterally, and I get this intermittent very sharp pain that’s like something is caught somewhere in there. It might be scar tissue; I don’t know, and I haven’t had it investigated, but it’s around the bottom of kneecap right there in that half circle.QYou just indicated the bottom of the right kneecap?AYes, yes.QNow, in relation to pain generally, were there ever times when you were not feeling pain in that right knee?ANo. There’s always pain there, but the very bad pain isn’t there all the time.QIs that the intermittent pain you were talking about?AYes, that’s the intermittent pain. The appellant gave the following evidence about her level of pain:QFollowing the recuperation period after the surgery, you felt that your knee was a little unstable? AYes.QAnd by the end of the day it would feel as though it had swollen?AYes.QAnd by the end of the day it was stiff? AYes.QAnd the degree of swelling and stiffness depended a bit on what you’d done during the course of the day??AThat’s correct.Q.If you had a quiet day, the pain was very little; if you’d had a rough day, the pain was very great? AYes.QAnd there were sometimes, weren’t there, if you had a couple of decent days of quiet days in a row where there would be very little, if any pain?,AThere would always be some, but it was way, way down the scale.

Decision

Reasons for decision

I would dismiss ground 3.Conclusion I would dismiss the appeal on each grounds 1, 2 and 3. I would hear the parties as to costs. LOVELL AND HINTON JJ: We have had the benefit of reading the judgment of Parker J. We agree with his Honour that the appeal should be dismissed for the reasons he gives. With respect to the first ground of appeal, we add the following. The complaint as to the adequacy of reasons must be considered in the light of the forensic contest. Relevantly the subject of that contest was the condition of the appellant’s right knee as at the time of her consultation with Dr Dobson on 22 October 2013. Here it is to be recalled that the appellant contended that the pain in her right knee had not changed since she was assessed by Dr Dobson. The appellant’s case was that at the time of the consultation she was never pain free; the pain fluctuated but never entirely went away. The respondent argued that the appellant had indicated to Dr Dobson that the pain was “intermittent” in the sense that she had days when she suffered no pain in the knee at all. Unfortunately the expression “intermittent” was not used consistently during the course of the trial. The appellant used the expression “intermittent” during the course of her evidence, to describe a variation in pain levels. She said there was always pain but some days it was worse than others. In cross-examination the appellant did not deny that she may have referred to suffering intermittent pain in the course of participating in the assessment undertaken by Dr Dobson. However, she also stated that she did not think that she said her pain was intermittent, because she suffered pain all the time. She admitted her memory was foggy. We do not suggest that the appellant was inconsistent in her evidence. It is however unfortunate that the expression “intermittent” was not used consistently. Dr Dobson’s original notes from which he produced his report were tendered in evidence. Those notes were made during the course of his consultation with the appellant. They were not a verbatim account. The word “intermittent” appears in the original hand written notes of Dr Dobson and is repeated by him in his report of 30 October 2013. It was not established definitively in the evidence whether it was a word specifically used by the appellant during the course of her consultation or whether it was a conclusion reached by Dr Dobson on the history he obtained from the appellant. In his evidence Dr Dobson indicated that the word “intermittent” reflected the history that he was given. He said that if he was told that the pain was constant he would have noted “constant pain”. Despite the confusion over the use of the word “intermittent”, when cross‑examined about the condition of her knee at the time of the consultation the appellant clearly denied as a fact that her pain was “intermittent” in the sense meant and alleged by the respondent. Counsel for the appellant in the Tribunal did not challenge the accuracy of Dr Dobson’s note. Rather, counsel attempted to obtain a concession from Dr Dobson that despite the accuracy of his note it did not reflect the totality of the pain suffered. Unfortunately the question of whether the appellant could have been suffering a constant level of underlying pain at the time of the assessment, and, if so, how that would affect the doctor’s assessment, was not clearly put.

Ratio Decidendi

Legal Principle Established

Before considering the three grounds of appeal I will make some observations about the operation of the points system under Table 17.35 and the effect of the allocated points on the assessment of WPI.Operation of the points system The underlying issue in this appeal is whether the appellant’s WPI arising from her right knee impairment was properly assessed at 20% WPI or 30% WPI. The Deputy President adopted Dr Dobson’s assessment of 76 points and thus a WPI of 20%. In order to be assessed at 30% WPI the appellant needed to accrue less than 50 points under Table 17.35. In that context it is appropriate to summarise the points rating applied to the appellant by the three assessors under Table 17.35. As there is no challenge in this appeal to the finding by the Deputy President that points should not be deducted for extension lag, that measurement has been excluded from the summary. The variation in points rating caused by differences in the findings made about mediolateral and anterioposterior stability, and to a lesser extent range of motion, must be considered in light of the evidence given by all three medical assessors that these objective measurements may vary depending upon how the person felt on the day of the examination. The rating given for pain is not based upon the situation on the day of examination but rather the description given by the person about their overall level of pain and the assessor’s interpretation of that information. The significance of the allocation of points for the assessment of pain is illustrated by the following examples. If the pain rating of 30 points ultimately adopted by Dr Dobson were to replace the 10 points allocated by each of Dr D’Onise and Dr Suyapto, their aggregate points rating would respectively be 52 points and 61 points. On the other hand, if the rating of 10 points for pain allocated by both Dr D’Onise and Dr Suyapto were to be combined with the rating for each of the several objective measurements given by Dr Dobson, the result would be an allocation of 56 points.[2] [2] There would be 10 points for pain, 23 points for range of motion, 10 points in respect of anterioposterior stability and 15 points for mediolateral stability with 2 points being deducted for flexion contracture. The result is that the appellant could only achieve a rating below 50 points and thus a 30% WPI assessment if the Deputy President were to be found to have erred by preferring the evidence of Dr Dobson to that of the other two assessors in respect of both the assessment of pain and the objective measurements. Ground 1 - inadequate reasons The principles to be applied when determining whether or not a judge has provided adequate reasons were summarised by Kirby P (as his Honour then was) in Soulemezis v Dudley (Holdings) Pty Ltd as follows:[3] This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusion reached concerning disputed factual questions and to list the findings on the principle contested issue. Only if this is done can this court to discharge its functions, if an appeal is brought to it.[3] (1987) 10 NSWLR 247 at 259.