Brennan-Lim v Return to Work SA

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.