Cooper v Return to Work Corporation of South Australia - [2020] SASC 140

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
COOPER v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2020] SASC 140
Reasons for Decision of The Honourable Justice Kelly
7 August 2020
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - PERSONS ENTITLED TO COMPENSATION
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 ground that, inter alia, the Full Bench denied him procedural fairness by not affording him an opportunity to make written or oral submissions on his notice.
Held, refusing permission to appeal:
1. It would have been better had the Full Bench ruled on the extension of time to file the notice at the hearing of the appeal and proceeded to hear all submissions on the notice at the hearing of the appeal but not all denials of procedural fairness are actionable.
2. There is no injustice in refusing permission where this matter is destined to proceed on remittal before a different presidential member who will have an opportunity to address the evidence and make findings about all of the arguments the parties wish to raise on what is, on any view, only an interim issue under s 21(3) of the Act.
Return to Work Act 2014 (SA) ss 21, 22, referred to.
Return to Work Corporation of South Australia v Cooper [2020] SAET 117; Stead v State Government Insurance Commission (1986) 161 CLR 141, discussed.
Khan v Return to Work Corporation of South Australia [2019] SASCFC 150; Frkic v Return to Work Corporation of South Australia (No 2) [2020] SASCFC 59, considered.

COOPER v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2020] SASC 140
Civil: Application

KELLY J: In this matter, the applicant, Simon Cooper, seeks permission to appeal on the following grounds:
1.The Full Bench of the South Australian Employment Tribunal (the Full Bench) denied the respondent worker procedural fairness by not affording him an opportunity to make written or oral submissions on his notice of alternate contentions, including addressing the appellant compensating authority’s submissions, or to be heard as to that opportunity.
2.The Full Bench misapplied s 21(3) of the Return to Work Act 2014 and the burden of proof in allowing the compensating authority’s appeal despite the respondent worker’s notice of alternate contentions on the basis that the Full Bench could not exclude the possibility that it would be found that a deduction should be made out (reasons [65]).
3.The Full Bench failed to provide adequate reasons for rejecting the respondent worker’s notice of alternate contentions.
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 Return to Work Corporation of South Australia (‘RTWSA’) 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 a complicated history of injuries.
In 2009, the applicant sustained a right knee injury for which he received compensation based upon an assessment of impairment at six per cent. In 2015, the applicant again injured his right knee. Over time, his back became painful. The applicant initially attributed this to an altered gait. In 2016, the applicant underwent a high tibial osteotomy to the right leg after which he wore a large rigid brace. He continued to experience right knee pain and back pain. As the applicant mobilised, he became aware of increasing pain in his back, left leg and both hips. In early 2017, the applicant returned to light duties but struggled, experiencing increased back and right leg pain. A claim for lower back pain was made in 2017 and subsequently accepted.
Later in 2017, the applicant underwent a total right knee replacement but the applicant did not believe that this was successful and walking became more painful. He experienced even more lower back pain.
The applicant was examined by Dr Suyapto for the purposes of obtaining an indicative assessment. Dr Suyapto had regard to the principles set out in s 22 of the Act and assessed a 30 per cent whole person impairment in respect of the right knee replacement on the basis that it was a ‘poor’ result. No consideration was given to the previous impairment of six per cent, or whether it should be deducted. As for the back condition, Dr Suyapto assessed an indicative 18 per cent whole person impairment.
At the trial, RTWSA argued three issues:
1.That the relevant tests for combination are to be found in cls 1.18 and 1.19 of the Impairment Assessment Guidelines and in accordance with them the impairments to the right leg and back should not be combined.
2.Alternatively, if the relevant test for combination is that there are ‘impairments from the same injury or cause’ as specified by s 22(8)(c), any causal connection between the right knee and the back did not explain all of the applicant’s impairment in those areas.
3.As for the 30 per cent indicative assessment for the right knee, there needed to be a deduction based on the earlier assessment of six per cent whole person impairment based on the 2009 injury.
On appeal before the Full Bench, RTWSA argued that the trial Judge erred in respect of the first and second issues. RTWSA argued that the first issue should have been resolved in accordance with the Guidelines because of the ‘legislative imperative given in s 22(2)(a)’.[1] As for the second issue, it was argued that it was necessary to deal with the source of the applicant’s impairments apart from those from the ‘same injury or cause’.[2] Reliance was placed upon the evidence of Dr Suyapto suggesting that the premature return to work in early 2017, of itself, caused impairment. The failure to address these matters was said to give rise to inadequate reasons and constitute an error of law.
[1] Return to Work Corporation of South Australia v Cooper [2020] SAET 117 at [48].
[2] Return to Work Corporation of South Australia v Cooper [2020] SAET 117 at [51].
The Full Bench recorded that the applicant, by Notice of Alternate Contentions (‘Notice’), argued that, regardless of RTWSA’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 and ‘if the trial Judge had dealt with this issue this would have been the inevitable outcome’.[3] RTWSA argued that the trial Judge needed to make findings about this issue and, on the medical evidence, ‘it was not clear that the deduction of 6 per cent should not be made’.[4]
[3] Return to Work Corporation of South Australia v Cooper [2020] SAET 117 at [53].
[4] Return to Work Corporation of South Australia v Cooper [2020] SAET 117 at [54].
The Full Bench rejected the first of RTWSA’s appeal issues but accepted that there were inadequate reasons constituting an error of law on the second issue.
Contrary to what is suggested by the proposed grounds of appeal, the Full Bench explicitly addressed the Notice, finding that it would have been better if the trial Judge had dealt with the assessment of the right knee including whether there should have been a deduction of six per cent.[5] The Full Bench also recorded that the applicant submitted that the 30 per cent whole person impairment for the right total knee replacement was not due to the previous injury with the result that there was ‘nothing to deduct under s 22(8)(g) of the Act’.[6] The Full Bench noted that the applicant’s argument was that because the anterior cruciate ligament had been removed by the total knee replacement any residual impairment caused by the 2009 injury was ‘subsumed’.[7]
[5]    Relying upon Prince Alfred College Incorporated v ADC [2016] HCA 37 at [131] (French CJ, Kiefel, Bell, Keane and Nettle JJ).
[6]    Return to Work Corporation of South Australia v Cooper [2020] SAET 117 at [64].
[7]    Return to Work Corporation of South Australia v Cooper [2020] SAET 117 at [64].
As to this, the Full Bench accepted that the evidence was ‘not particularly clear’ and that the Full Court in Khan v Return to Work Corporation of South Australia[8] left open deductions for pre-existing impairments in connection with an assessment of whole person impairment following a knee replacement.[9]
[8] [2019] SASCFC 150.
[9] Return to Work Corporation of South Australia v Cooper [2020] SAET 117 at [65].
In the written submissions provided by the applicant, it is not suggested that there was no opportunity given to the parties to be heard on the Notice. In fact, those submissions accept that written submissions were made in support of the Notice, as well as against the Notice.
The complaint made in the written submissions in support of the application for permission to appeal starts with the fact that RTWSA opposed the extension of time which the applicant required for the filing of the Notice. There was no oral argument on the Notice at the hearing of the appeal. It is clear that the applicant could have put oral argument in support of his written submissions, had he wished to do so (‘I assume your Honours’ don’t wish to hear…’). The Full Bench gave RTWSA permission to file written submissions on the Notice after the hearing of the appeal.
When RTWSA filed its written submissions on the Notice it also applied to lead ‘fresh evidence’ in the form of another medical report. Again, it is clear the applicant could have filed a written reply had he wished to do so. Rather than deal with all issues, the applicant opposed the application to adduce fresh evidence and sought a ruling from the Full Bench before replying to RTWSA’s written submissions on the Notice. Written submissions were then exchanged but only on the topic of the ‘fresh evidence’. The applicant says he did not respond to RTWSA’s written submissions on the Notice because this fell outside the scope of the direction given by the Full Bench on 24 March 2020.
When the Full Bench handed down its decision, it ruled on the appeal and the Notice but did not rule on the question of fresh evidence.
The question then is whether the loss of the opportunity to put written or oral submissions by way of reply to RTWSA’s written submissions on the Notice comprises a denial of procedural fairness warranting permission to appeal.
In this case, the applicant had an opportunity to respond to RTWSA’s written submissions on the Notice, but decided to confine his response to opposing the attempt to lead fresh evidence. When issuing its direction on 24 March, and again when delivering its decision on the appeal, the Full Bench apparently overlooked the need to hear from the applicant in reply on the Notice.
This apparent fragmentation of the appeal process is regrettable. Parties should generally be prepared to address all likely issues at the hearing of an appeal, and this includes RTWSA’s attempt to lead ‘fresh evidence’ on the Notice. It should not have been necessary to defer this issue until after the hearing of the appeal. RTWSA’s evidence and submissions on the Notice should have been available at the hearing of the appeal. As well, the applicant’s strategy of attempting to force the Tribunal into making an interim ruling rather than addressing RTWSA’s submissions and fresh evidence on the Notice was productive of wasted time and costs, not to mention confusion.
When parties have an opportunity to respond to issues and submissions they should generally take that opportunity. Were it otherwise, appeal courts would be unduly constrained and delayed in the efficient disposition of cases. Nevertheless, it would have been better had the Full Bench ruled on the extension of time to file the Notice at the hearing of the appeal and proceeded to hear all submissions on the Notice at the hearing of the appeal.
Not all denials of procedural fairness are actionable. In Stead v State Government Insurance Commission, the High Court held:[10]
… not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. …
[10] Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.
Permission to appeal is refused. There appear to be inadequate prospects of success. It is far from clear that the issue raised by the Notice is not addressed by the reasons of the Full Court in Khan. In addition, this Court has only recently granted permission to appeal where the interaction between s 22 of the Act and various chapters of the Guidelines will be reviewed.[11]
[11] Frkic v Return to Work Corporation of South Australia (No 2) [2020] SASCFC 59.
More importantly, there is no injustice in refusing permission where this matter is destined to proceed on remittal before a different presidential member who will have an opportunity to address the evidence and make findings about all of the arguments the parties wish to raise on what is, on any view, only an interim issue under s 21(3) of the Act. Any further fragmentation of the hearing of this matter should be avoided.