Cooper v Return to Work Corporation - [2020] SASCFC 94

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal)
COOPER v RETURN TO WORK CORPORATION
[2020] SASCFC 94
Judgment of The Full Court
(The Honourable Justice Stanley, The Honourable Justice Nicholson and The Honourable Justice Parker)
28 September 2020
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - DENIAL OF NATURAL JUSTICE
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - RIGHT OF APPEAL
Application for permission to appeal against a decision of the Full Bench of the South Australian Employment Tribunal. The Full Bench allowed an appeal brought by the respondent.
The applicant applied to be taken to be ‘seriously injured’ on an interim basis pursuant to s 21(3) of the Return to Work Act 2014 (SA) (‘the Act’). Under this provision, a worker may seek an interim decision to the effect that he or she is taken to be seriously injured pending an assessment of permanent impairment if the respondent is satisfied, or it appears, that the applicant’s injury has or will result in permanent impairment and that the degree of whole person impairment is likely to be 30 per cent or more. The applicant had filed a notice of alternate contentions, which argued that, regardless of the respondent’s grounds of appeal, the appeal should nevertheless be dismissed because the applicant had a 30 per cent whole person impairment in connection with his right knee.
The applicant appeals on the grounds that the Full Bench denied him procedural fairness by not affording him an opportunity to make written or oral submissions on his notice, that the Full Bench erred in misapplying s 21(3) of the Act and the burden of proof, and that the Full Bench failed to provide adequate reasons for rejecting the notice.
Held, (per curiam) refusing permission to appeal:
1. The applicant was not denied procedural fairness. It was a matter for the exercise of the Full Bench’s discretion whether it would hear oral submissions in the circumstances.
2. The applicant misunderstands the approach taken by the Full Bench in their application of s 21(3). The impugned passage is not an analysis of the nature of the burden of proof to be applied to that section, but instead reflects the approach of the Full Bench who were indicating that the respondent had an arguable point which needed to be dealt with on the evidence and that, in the circumstances, could appropriately be dealt with on remission.
3. As to the question of adequate reasons for disposing of the notice of contention, the Full Bench was obliged to expose its reasoning in a way the losing party could understand. It did so.
4. The applicant will not suffer substantial prejudice in any event, because the question of whether the worker has made out an entitlement pursuant to s 21(3) of the Act will be considered on the remittal.
Return to Work Act 2014 (SA), referred to.
Return to Work Corporation (SA) v Cooper [2020] SAET 117; Khan v Return to Work Corporation [2019] SASCFC 150, discussed.

COOPER v RETURN TO WORK CORPORATION
[2020] SASCFC 94
Civil: Permission to Appeal
Full Court: Stanley, Nicholson and Parker JJ

THE COURT: This is an application for permission to appeal to the Full Court from a decision of the Full Bench of the South Australian Employment Tribunal (the Tribunal).
The applicant suffered a compensable injury in 2009 when he tore the ACL of his right knee. Following surgery for this injury he returned to his usual work. The degree of impairment resulting from this injury was assessed as six per cent of whole person impairment (WPI) under the provisions of the repealed Act. On 1 June 2015 the appellant again injured his right knee in compensable circumstances. This injury required a total knee replacement which was performed on 4 September 2017. He also suffered a work related lower back injury for which he underwent surgery on 27 March 2018.
The applicant sought an interim decision that he be taken to be a seriously injured worker under the Return to Work Act 2014 (SA) (RTW Act).
Section 21(3) of the RTW Act provides:
…
(3) Pending an assessment of permanent impairment, the Corporation may on its own initiative, or must on application made by the worker in accordance with the regulations, make an interim decision to the effect that a worker will be taken to be a seriously injured worker under this Act if—
(a)it is satisfied, or it appears, that the worker's injury has or will result in permanent impairment; and
(b)it appears that the degree of whole person impairment is likely to be 30% or more,
and the Corporation's decision will have effect under this Act in accordance with its terms.
At the trial of the matter there was evidence from a medical practitioner who considered that the total knee replacement resulted in a 30 per cent WPI. He assessed the lower back injury as resulting in an 18 per cent WPI. The judge accepted this evidence. Her Honour decided the impairments should be combined. The judge found this meant it was unnecessary for her to determine whether the prior assessment of six per cent should be deducted from the applicant’s 30 per cent WPI for his right knee. The applicant was taken to be a serious injured worker on an interim basis.
The Corporation appealed to the Full Bench on the grounds, inter alia, that the trial judge’s reasons for decision for combining the right knee and lower back impairments were inadequate.
Shortly before the hearing of the appeal the applicant applied for an extension of time to lodge a notice of alternate contention to the effect that he should be taken to be a seriously injured worker on an interim decision under s 21(3) of the RTW Act because, in any event, the evidence established that the degree of WPI applying to his right knee was likely to be 30 per cent. The application was made returnable to the hearing of the appeal.
The outline of argument filed by the applicant on the appeal to the Full Bench set out the argument on the notice of alternate contention. The Corporation’s outline which had been filed earlier did not address the notice of alternate contention.
At the appeal the Corporation opposed the application for an extension of time to rely on the notice of alternate contention and, in the alternative, sought time to put a written submission in response.
The President of the Tribunal ruled that the Full Bench would allow a period for written submissions to be received from the Corporation and indicated that the Full Bench would need to hear from the parties whether it later needed to hear any oral submissions. The appeal proceeded without oral submissions being heard from the parties in relation to the notice of alternate contention. At the conclusion of oral argument the Full Bench said it did not wish to hear from the parties pending the written submissions being received and they would deal with the question of whether to hear oral submissions after it had received the Corporation’s written submissions.
The Corporation filed a written submission in response to the notice of alternate contention. It sought to adduce fresh evidence by way of a report of Dr Pers. This course was opposed by the applicant. Subsequently, on 24 March 2020 the President gave a direction that the applicant file written submissions in reply to the Corporation’s response to the notice of alternate contention as it related to the Dr Pers’ report issue and that the Full Bench would consider the application to admit fresh evidence on the papers. Further written submissions were received from the worker and the Corporation on the fresh evidence question.
The Full Bench then delivered its judgment in the matter allowing the Corporation’s appeal, setting aside the orders of the trial judge and remitting the matter for hearing before a different judge. It did so on the basis that the judge’s reasons were inadequate in failing to deal with the question of the causes of the applicant’s lower back impairment. The Full Bench held that, had the judge done so, she may well have come to the conclusion that the applicant’s knee and lower back impairments were not from the same injury or cause. The Full Bench then dealt with the notice of alternate contention as follows:[1]
In Prince Alfred College Incorporated v ADC, French CJ, Kiefel, Bell, Keane and Nettle JJ made the point that ‘It is a matter of long-standing practice in most trial courts that, where possible, all issues be the subject of adjudication. The practice is based upon the desirability of avoiding the need for a new trial in the event that an appeal on one issue is successful.’ They emphasised that this is not a rule of law but is a convention of convenience that is not necessarily appropriate in all cases. It was, however, appropriate in this case. With respect, it would have been better for the trial judge to have dealt with the WPI assessment of Mr Cooper’s right knee and whether there should have been a deduction in this case.
Mr Warren submitted that the 30% WPI assessment was for the right total knee replacement and no portion of the assessed impairment was due to the previous injury, such that there is nothing to deduct under s 22(8)(g) of the Act. He said that the evidence established that Mr Cooper’s anterior cruciate ligament was removed by the total knee replacement surgery. He said that it followed that any residual impairment from his 2009 rupture and repair of his anterior cruciate ligament was subsumed by the total knee replacement surgery, which was required because of the subsequent 2015 work injury.
We agree with the submissions of Mr Duggan that the evidence on this issue is not particularly clear. We cannot exclude the possibility that it would be found that a deduction should be made, in which case the assessment for the right total knee replacement would be less than 30% WPI. We also note in passing that in Khan v Return to Work Corporation, Kourakis CJ, with whom Parker and Doyle JJ agreed, left open the possibility that there can be a deduction for a pre-existing impairment in connection with an assessment of WPI following a knee replacement.
[citations omitted]
[1] [2020] SAET 117 at [63]-[65].
The applicant seeks permission to appeal on three grounds. First, that the Full Bench denied him procedural fairness; second, that the Full Bench misapplied the statutory test and burden of proof under s 21(3)(b) of the RTW Act in the context of considering a deduction under s 22(8)(g) of that Act; and third, that the Full Bench provided inadequate reasons for its decision not to uphold the alternate contention.
In deciding whether to grant permission to appeal the overriding principle is always the interests of justice. The ordinary approach is that permission will only be granted where an appeal is reasonably arguable and the subject matter of the appeal is of sufficient substance to justify consideration. If the appeal raises a matter of general importance that is a cogent factor in favour of the grant of permission. An appeal to the Full Court is confined to a question of law.
The applicant contends that each of the appeal grounds is reasonably arguable. He further contends that there are four reasons why there is utility in the appeal. First, because if there is no deduction of six per cent to be made for the prior impairment of the right knee, there would be no need for a retrial because, on an interim application, satisfying the threshold is all that is relevant, not the actual total WPI. Second, if there should be a deduction, the retrial would not need to address issues relating to the degree of impairment of the knee. The issues upon retrial will then be limited to impairment of the lower back and whether it should be combined with the knee impairment. Third, that not determining the deduction issue may result in an appeal to the Full Bench from any decision on the retrial. Fourth, that the Full Court in Khan v Return to Work Corporation[2] did not address the deduction issue at all. Khan involved two claims for impairment resulting from the same injury. In this matter there are two separate work injuries independently assessed for the degree of WPI. The issue is whether any portion of the impairment resulting from the total knee replacement was due to the earlier injury that caused the worker to suffer the six per cent WPI.
[2] [2019] SASCFC 150.
We would refuse permission to appeal. At issue in the dispute is whether the appellant has established an entitlement to be taken to be a seriously injured worker under the RTW Act pursuant to s 21(3).
We do not consider that any of the appeal grounds are reasonably arguable. In relation to ground 1 it is clear the applicant had to be afforded procedural fairness. It is apparent that the Full Bench granted permission to the applicant to argue the ground set out in his notice of alternate contention. The applicant filed a written outline of argument in support of that ground. The applicant contends that he was denied procedural fairness because he was not permitted the opportunity to make oral submissions after the Corporation filed its written submissions in response. It was a matter for the exercise of the Full Bench’s discretion whether it would hear oral submissions in those circumstances. So much was made clear by the President at the conclusion of the appeal hearing and in the subsequent directions issued by him on 24 March 2020. While the direction of 24 March 2020 refers to the Dr Pers’ report “issue”, we consider it tolerably clear that the President was referring to the argument based on Dr Pers’ opinion that there should be a six per cent deduction from the applicant’s total WPI because of the WPI he suffered as a result of the ACL injury to his right knee. This was central to the issue raised by the notice of alternate contention.
The Full Bench was not obliged to hear further oral submissions, having received written submissions on that issue. It was a matter of discretion. In any event, even if we are wrong about what the President was referring to, given the disposition of the appeal by the Full Bench, the applicant will not suffer substantial prejudice with respect to any entitlement he has under the RTW Act because the matter is to be remitted for rehearing before another judge.
Ground 2 contends that the Full Bench misapplied s 21(3). The applicant contends this is evidenced by the Full Bench’s reasons that it could not exclude the possibility that a deduction should be made for the six per cent WPI assessment in respect of the ACL injury to the applicant’s right knee. The applicant’s contention is that this reasoning discloses error in relation to the burden of proof. We do not accept that submission. It misunderstands the approach taken by the Full Bench. The Full Bench allowed the appeal on the ground that the reasons of the trial judge in relation to the assessment required by s 21(3) failed to explain how she dealt with the medical evidence relevant to the issue of combination for the purpose of deciding whether the test prescribed by s 21(3) had been satisfied.
The impugned passage is not an analysis of the nature of the burden of proof to be applied to s 21(3). Rather, it reflects the Full Bench’s approach to the disposition of the appeal. The Full Bench allowed the Corporation’s appeal and remitted the matter for rehearing, in circumstances where the trial judge had failed to deal with the WPI assessment of the applicant’s right knee and whether there should have been a deduction for the pre-existing WPI. The assessment in turn depended on findings of fact in relation to the causal relationship of the applicant’s back injury and the nature of the knee impairment. The trial judge neglected to make these necessary findings or had not made them clearly enough. The Full Bench merely was indicating that the Corporation had an arguable point which needed to be dealt with on the evidence and that, in the circumstances, could appropriately be dealt with on remission.
Finally, in relation to ground 3, we consider that it is not reasonably arguable that the Full Bench’s reasons concerning the notice of alternate contention are inadequate. The Full Bench was obliged to expose its reasoning in a way the losing party could understand.[3] We consider it did so. The Full Bench reasoned that findings of fact were required to decide any entitlement on the part of the applicant pursuant to s 21(3). Those findings had not been made or not made clearly enough. Dissatisfaction with the disposition of the argument on the notice of alternate contention does not equate to a failure to provide adequate reasons.
[3] Assad v Eliana Construction and Developing Group Pty Ltd [2015] VSCA 53 at [34].
Again, in any event, the question of whether the worker has made out an entitlement pursuant to s 21(3) will be considered on the remittal. In these circumstances, by refusing permission to appeal, the applicant will not suffer substantial prejudice.
For these reasons, we consider that even if we had come to the conclusion that any of the grounds sought to be agitated by the applicant were reasonably arguable, we do not consider the subject matter of the appeal is of sufficient substance to justify consideration by the Full Court in circumstances where the dispute will be reheard on remittal.
The interests of justice do not support a grant of permission.