Dallimore v Return to Work Corporation of South Australia
[2020] SASCFC 115
•4 December 2020
Supreme Court of South Australia
(Full Court)
DALLIMORE v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2020] SASCFC 115
Judgment of The Full Court
(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Auxiliary Justice David)
4 December 2020
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - EVIDENCE - MEDICAL EVIDENCE
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 - APPEALS, JUDICIAL REVIEW AND STATED CASES - NATURE AND SCOPE OF APPEAL AND REVIEW
This is an appeal on a question of law brought by permission from a decision of the Full Bench of the South Australian Employment Court. The appeal concerns the correct approach to the assessment of the degree of whole person impairment (WPI) of a worker suffering from the condition of pulmonary hypertension pursuant to s 43 and s 43A of the repealed Workers Rehabilitation and Compensation Act 1986 (SA) (the WRC Act). The disposition of the appeal turns upon the interpretation of the American Medical Association Guides to the Evaluation of Permanent Impairment (5th Edition) (the AMA Guides). Specifically, the appeal concerns the construction of Table 4-6 of the AMA Guides in the context of Chapters 3 and 4 of the Guides.
The appellant fractured his left leg at work on 16 November 2007. This was a compensable injury. He underwent surgery, after which he developed a deep vein thrombosis in his left leg and a consequential pulmonary embolism with multiple small lung infarctions. The appellant claimed lump sum compensation pursuant to s 43 of the WRC Act. The respondent made a determination assessing the appellant’s entitlement to lump sum compensation in respect of various compensable disabilities. There were disputes and further claims. This appeal is confined to the assessment for the pulmonary hypertension.
There was a trial before a judicial member of the SAET. The judge found the appellant to be suffering a 20 per cent WPI due to the pulmonary embolism. The judge assessed the WPI by finding that notwithstanding the absence of any conclusive results on PAP testing and echocardiogram the evidence of breathlessness evidenced moderate pulmonary hypertension. The appellant and respondent appealed the decision. The appellant complained of the finding of 20 per cent WPI assessment of permanent impairment for the pulmonary embolism. He contended that the judge erred in applying the AMA guides, in particular, Table 4-6, and the assessment should have been 37 per cent. A Full Bench of the South Australian Employment Court allowed the appeal and remitted the matter for rehearing before a different presidential member.
The matter was retried before the SAET. A deputy president accepted an assessment of a WPI of 29 per cent in respect of the pulmonary embolism, notwithstanding the echocardiogram concluded that the appellant had normal right heart pressure and that his right heart appeared normal. The deputy president relied on clinical evidence of pulmonary hypertension notwithstanding the absence of evidence of the condition on echocardiogram. The evidence of pulmonary hypertension was the increase in pulmonary artery pressure with effort resulting in breathlessness absent any other cause.
There was a further appeal and cross-appeal to the Full Bench. The Full Bench held that the deputy president erred in his construction of the AMA Guides. It held that on the evidence before him, the only finding available was that the appellant did not have a rateable impairment for pulmonary hypertension. The Full Bench held that under the AMA Guides a worker is only entitled to an assessment of WPI in respect of a permanent impairment due to pulmonary hypertension if the worker has had a PAP assessment with an echocardiogram or right heart catheterisation that demonstrates pulmonary hypertension. The AMA Guides insist on objective evidence of an abnormal PAP as a necessary prerequisite to obtaining a rateable assessment of WPI for pulmonary hypertension. The Full Bench rejected the exercise of clinical judgment as a sound medical basis for assessing WPI for pulmonary hypertension.
The appellant contends the Full Bench erred in its construction of the AMA guides and that he has an entitlement to a WPI assessment due to pulmonary hypertension under Table 4-6 of the AMA Guides notwithstanding the PAP reading is less than 40 mm Hg. The respondent contends that the AMA Guides provide that the definitive assessment of pulmonary hypertension is made by PAP assessment with an echocardiogram or right-heart catheterisation. An abnormal PAP is a necessary prerequisite to rating permanent impairment due to pulmonary hypertension.
Held per Stanley J, Peek J and David AJ agreeing (allowing the appeal):
1. There is an error in class 3 of Table 4-6. It should refer to “moderate pulmonary hypertension (PAP 51-75 mm Hg)”.
2. The terms of Chapter 4.4 make clear that the definitive assessment of pulmonary hypertension is made by PAP assessment with an echocardiogram or right heart catheterisation. Permanent impairment due to pulmonary hypertension cannot be rated under the AMA Guides where the PAP reading is less than 40 mm Hg.
3. The reference to “any degree” of pulmonary hypertension in Table 4-6 must be understood in that context as referring to the degrees of mild, moderate or severe, given that for the purposes of rating permanent impairment due to pulmonary hypertension a minimum PAP reading of 40 mm Hg is required. The “degrees” of pulmonary hypertension, namely, mild, moderate and severe, should be read as exhaustive. “Any degree of pulmonary hypertension” is to be understood as a worker with a PAP reading of 40 mm Hg or higher.
4. The appeal to the Full Bench of the South Australian Employment Court from the deputy president’s decision, like the appeal to this Court, is confined to a question of law. It is not open to this Court on appeal to interfere with the factual finding made as to the level of impairment suffered by the appellant due to pulmonary hypertension. Neither was it open to the Full Bench to do so.
5. The determination and orders made by the Full Bench that set aside the deputy president’s assessment of 29 per cent WPI on account of pulmonary hypertension and determined that the appellant does not have a rateable WPI for pulmonary hypertension are set aside.
Workers Rehabilitation and Compensation Act 1986 (SA) ss 43, 43A, 86, 86A; American Medical Association Guides to the Evaluation of Permanent Impairment (5th Edition); Return to Work Act 2014 (SA) Sch 9 Cl 50, referred to.
HJ Heinz Company Australia Ltd v Kotzman & Ors [2009] VSC 311; Taylor v Mountain Pine Furniture Pty Ltd [2006] VSC 499; Frkic v Return to Work Corporation of South Australia (No. 2) [2020] SASCFC 59; Kowalski v Cole & Ors [2015] SASCFC 169, applied.
Dallimore v Return to Work SA (Slape Crash Repairs) [2016] SAET 47; Dallimore v Return to Work SA [2017] SAET 72; Dallimore v RTWSA [2018] SAET 67; Return to Work Corporation of South Australia v Dallimore [2020] SAET 77, discussed.
Victorian WorkCover Authority v Eldson (2013) 42 VR 434; Clarke v Department for Health and Ageing [2016] SAET 31; Gamble v Emerald Hill Electrical Pty Ltd & Ors (2012) 38 VR 45; Mountain Pine Furniture Pty Ltd v Taylor (2007) 16 VR 659, considered.
DALLIMORE v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2020] SASCFC 115Full Court: Peek, Stanley JJ and David AJ
PEEK J: I agree with the orders proposed by Stanley J and with his reasons.
STANLEY J:
Introduction
This is an appeal on a question of law brought by permission from a decision of the Full Bench of the South Australian Employment Court.
The appeal concerns the correct approach to the assessment of the degree of whole person impairment (WPI) of a worker suffering from the condition of pulmonary hypertension pursuant to s 43 and s 43A of the repealed Workers Rehabilitation and Compensation Act 1986 (SA) (the WRC Act). The disposition of the appeal turns upon the interpretation of the American Medical Association Guides to the Evaluation of Permanent Impairment (5th Edition) (the AMA Guides). Specifically, the appeal concerns the construction of Table 4-6 of the AMA Guides in the context of Chapters 3 and 4 of the Guides.
Background
The matter has a somewhat convoluted history.
The appellant fractured his left leg at work on 16 November 2007. This was a compensable injury. He underwent surgery, after which he developed a deep vein thrombosis in his left leg and a consequential pulmonary embolism with multiple small lung infarctions. The appellant claimed lump sum compensation pursuant to s 43 of the WRC Act. The respondent made a determination assessing the appellant’s entitlement to lump sum compensation in respect of various compensable disabilities. There were disputes and further claims. This appeal is confined to the assessment for pulmonary hypertension.
There was a trial before a judicial member of the SAET.[1] She heard evidence from two cardiologists, Dr Hetzel and Dr Sangster. At issue in deciding the claim for assessment was whether the evidence established that the appellant suffered from pulmonary hypertension. Dr Hetzel was of the opinion he did. Relying on his clinical findings, he assessed the appellant as suffering a 37 per cent WPI on account of pulmonary hypertension notwithstanding that an echocardiogram recorded a PAP[2] of 25 mm Hg. He described this as being at the upper limit of normal. The appellant also underwent an inconclusive stress echocardiogram which he was unable to complete due to fatigue, pain in the leg and giddiness. The purpose of this test was to determine any change in right ventricular and pulmonary artery systolic pressures with physical stress.[3] Dr Sangster thought there was evidence of mild pulmonary hypertension only. The judge found the appellant became breathless with relatively limited physical activity and easily fatigued and tired after limited activity. The judge preferred the opinion of Dr Hetzel that the appellant’s impaired lung function evidenced pulmonary hypertension.
[1] Dallimore v Return to Work SA (Slape Crash Repairs) [2016] SAET 47.
[2] PAP is an anagram for pulmonary artery pressure.
[3] Report of Dr Hetzel, 23 March 2016, Exhibit A1 Item 38.
Ultimately, the judgment made determinations of those matters in dispute. The judge found the appellant to be suffering a 20 per cent WPI due to the pulmonary embolism. The judge assessed the WPI by finding that notwithstanding the absence of any conclusive results on PAP testing and echocardiogram the evidence of breathlessness established moderate pulmonary hypertension which brought the appellant within the category of class 2 of Table 4-6. The judge considered placing the appellant in class 3 could not be justified in the absence of conclusive test results.
The judge also assessed the appellant as suffering from a seven per cent WPI of the lower digestive tract and a four per cent WPI due to deep vein thrombosis. She concluded that these impairments should be combined with previously determined or agreed impairments on the basis they arose from the same trauma and were to be treated together as the one injury, pursuant to s 43A of the WRC Act. The issue of combination does not arise on this appeal.
The appellant and respondent appealed the decision. The appellant complained of the finding of 20 per cent WPI assessment of permanent impairment for the pulmonary embolism. He contended that the judge erred in applying the AMA guides, in particular, Table 4-6, and the assessment should have been 37 per cent. A Full Bench of the South Australian Employment Court allowed the appeal and remitted the matter for rehearing before a different presidential member.[4]
[4] Dallimore v Return to Work SA [2017] SAET 72.
The matter was retried before the SAET. [5] A deputy president heard evidence again from Dr Hetzel and from another cardiologist, Dr Ardill. Both Dr Hetzel and Dr Ardill considered that the appellant’s resting PAP was within normal limits. Dr Ardill was of the opinion that test results were critical to diagnosing pulmonary hypertension. Based on his findings on examination he considered the appellant did not have any signs of pulmonary hypertension. The echocardiogram concluded that the appellant had normal right heart pressure and that his right heart appeared normal. He said that because echocardiogram findings did not show any evidence of pulmonary hypertension there was no rateable impairment. On the other hand, Dr Hetzel adhered to his previous opinion that there was clinical evidence of pulmonary hypertension notwithstanding the absence of evidence of the condition on echocardiogram. The evidence of pulmonary hypertension was the increase in pulmonary artery pressure with effort resulting in breathlessness absent any other cause. The appellant was unable to complete a stress test because of breathlessness. However, he revised his assessment of the appellant’s WPI for pulmonary hypertension to 29 per cent. The deputy president preferred the opinion of Dr Hetzel over that of Dr Ardill. He accepted Dr Hetzel’s subsequent assessment of a WPI of 29 per cent in respect of the pulmonary embolism.
[5] Dallimore v RTWSA [2018] SAET 67.
There was a further appeal and cross-appeal to the Full Bench.[6]
[6] Return to Work Corporation of South Australia v Dallimore [2020] SAET 77.
The Full Bench held that the deputy president erred in his construction of the AMA Guides. It held that on the evidence before him, the only finding available was that the appellant did not have a rateable impairment for pulmonary hypertension. The Full Bench held that under the AMA Guides a worker is only entitled to an assessment of WPI in respect of a permanent impairment due to pulmonary hypertension if the worker has had a PAP assessment with an echocardiogram or right heart catheterisation that demonstrates pulmonary hypertension. The AMA Guides insist on objective evidence of an abnormal PAP as a necessary prerequisite to obtaining a rateable assessment of WPI for pulmonary hypertension. The Full Bench rejected the exercise of clinical judgment as a sound medical basis for assessing WPI for pulmonary hypertension. They said that the different opinions of three experienced cardiologists as to whether the appellant had pulmonary hypertension and, if so its level of severity, illustrated the potential unreliability of making a diagnosis and assessment of impairment of pulmonary hypertension based on clinical judgment in the absence of objective evidence of an abnormal PAP. The Full Bench concluded that as there was no objective evidence of an abnormal PAP, the appellant did not meet the threshold for assessment. The only conclusion that was open was that he had a zero per cent WPI for pulmonary hypertension.
The Full Bench proceeded to make the following obiter remarks in relation to the question of the interpretation of Table 4-6:[7]
In light of this conclusion it is not necessary for us to resolve the issue as to the correct construction of Class 3. If it had come to it, we would be inclined to think that there might be an error in the text. It can be seen that Class 1 refers to mild pulmonary hypertension, which it defines as between 40 to 50 mm Hg. Class 2 refers to moderate pulmonary hypertension, which it defines as 51 to 75 mm Hg, and Class 4 refers to severe pulmonary hypertension, which it defines as greater than 75 mm Hg. Class 3 refers to moderate hypertension, yet it defines it as greater than 75 mm Hg, being the same definition used for severe pulmonary hypertension. This makes no sense.
…
Resolving the dilemma created by the use of ‘and’ and ‘or’ in Class 3 becomes less difficult, if it is accepted that there is an error in the text of Class 3. If the gateway to Class 3, like Class 2, is the fact of moderate pulmonary hypertension measured as between 51 to 75 mm Hg, it makes sense that a person can move from Class 2 into Class 3 in one of two ways. That is, by having the requisite PAP and signs of right heart failure or by having the requisite PAP and symptoms of mild limitation as defined in Class 2 in Table 3.1. That said, we accept that there is some tension with this approach and the criteria for qualifying for Class 4. Read literally, Class 4 contemplates that a person who has symptoms of severe limitation, as defined in Class 3 or 4 of Table 3.1, and who has any degree of pulmonary hypertension, meaning at least mild pulmonary hypertension as defined,[8] qualifies for assessment within that Class. If this is the correct construction, it might be thought to be consistent, a person who has symptoms of mild limitation as defined in Class 2 of Table 3.1, and who has any degree of pulmonary hypertension in the sense just discussed, would qualify for assessment within Class 3.
[7] [2020] SAET 77 at [104], [106].
[8] That is a PAP of at least 40 mm Hg.
Section 43
Section 43 of the WRC Act provided:
(1)Subject to this Act, if a worker suffers a compensable injury resulting in permanent impairment as assessed in accordance with section 43A, the worker is entitled (in addition to any entitlement apart from this section) to compensation for non‑economic loss by way of a lump sum.
(2)Subject to this section, the lump sum will be an amount that represents a portion of the prescribed sum calculated in accordance with the regulations.
(3)Regulations made for the purposes of subsection (2) must provide for compensation that at least satisfies the requirements of Schedule 3 taking into account the assessment of whole of person impairment under this Division.
(4)An entitlement does not arise under this section if the worker's degree of permanent impairment is less than 5%.
(5)An entitlement does not arise under this section in relation to a psychiatric impairment.
(6)If a worker suffers 2 or more compensable injuries arising from the same trauma—
(a) the injuries may together be treated as 1 injury to the extent set out in the WorkCover Guidelines (and assessed together using any combination or other principle set out in the WorkCover Guidelines); and
(b) the worker is not entitled to receive compensation by way of lump sum under subsection (2) in respect of those injuries in excess of the prescribed sum.
(7)If—
(a) a compensable injury consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior compensable injury; and
(b) compensation by way of lump sum has been previously paid under this section, or a corresponding previous enactment,
there will be a reduction of the lump sum payable under this section in respect of the injury by the amount of the previous payment unless such a reduction is incorporated into the provisions of the WorkCover Guidelines.
(8)For the purposes of this section, the prescribed sum is—
(a) unless a regulation has been made under paragraph (b)—$400 000 (indexed); or
(b) a greater amount prescribed by regulation for the purposes of this definition.
(9)In connection with the operation of subsection (8)—
(a) the amount to be applied with respect to a particular injury is the amount applying under that subsection at the time of the occurrence of that injury; and
(b) an amount prescribed by regulation under paragraph (b) of that subsection must be indexed so as to provide annual adjustments according to changes in the Consumer Price Index.
(10)For the purposes of this section, any degree of impairment will be assessed in accordance with section 43A (and the WorkCover Guidelines).
(11)Compensation is not payable under this section after the death of the worker concerned.
(12)In this section—
WorkCover Guidelines means the guidelines published under section 43A.
Section 43A
Section 43A of the WRC Act provided:
(1)This section sets out a scheme for assessing the degree of impairment that applies to a compensable injury that results in permanent impairment.
(2)An assessment—
(a) must be made in accordance with the WorkCover Guidelines; and
(b) must be made by a legally qualified medical practitioner who holds a current accreditation issued by the Corporation for the purposes of this section.
(3)The Minister will publish guidelines (the "WorkCover Guidelines") for the purposes of section 43 and this section.
(4)The guidelines under subsection (3)—
(a) must be published in the Gazette; and
(b) may adopt or incorporate the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time; and
(c) must incorporate a methodology that arrives at an assessment of the degree of impairment of the whole person; and
(d) may specify procedures to be followed in connection with an assessment for the purposes of this Division; and
(e) may have effect on a day specified by the Minister by notice in the Gazette; and
(f) may be amended or substituted by the Minister from time to time.
(5)The Minister must, before publishing or amending the WorkCover Guidelines, consult with—
(a) the Australian Medical Association (South Australia) Incorporated; and
(b) any other prescribed body.
(6)The Corporation will establish an accreditation scheme for the purposes of subsection (2)(b).
(7)The accreditation scheme—
(a) may provide for a term or period of accreditation, and for the suspension or cancellation of accreditation on specified grounds; and
(b) may specify terms or conditions of accreditation; and
(c) may be amended or substituted by the Corporation from time to time.
(8)An assessment of the degree of impairment resulting from an injury for the purposes of this Division must—
(a) be made after the injury has stabilised; and
(b) subject to subsection (9), be based on the worker's current impairment as at the date of assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury.
(9)An assessment must take into account the following principles:
(a) if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed chronologically by date of injury;
(b) impairments from unrelated injuries or causes are to be disregarded in making an assessment;
(c) assessments are to comply with any other requirements specified by the WorkCover Guidelines or prescribed by the regulations.
(10)An amendment or substitution in relation to the WorkCover Guidelines under subsection (4)(d) will only apply in respect of an injury occurring on or after the date the amendment or substitution takes effect.
(11)A number determined under the WorkCover Guidelines with respect to a value of a person's degree of impairment may be rounded up or down according to any principle set out in the WorkCover Guidelines.
Section 43A(3) provided for the publication of WorkCover Guidelines. The WorkCover Guidelines were published by the Minister pursuant to s 43A(3). The Guidelines speak in general terms about the principles to be adopted in making an assessment of WPI. Section 43A(4)(b) provided that the Guidelines may adopt or incorporate provisions of other publications, with or without modification or addition. The WorkCover Guidelines adopt and apply with certain modifications the AMA Guides. The Guidelines adopt the AMA Guides for the case of impairments for which the Guidelines do not make distinct provision.
The AMA Guides
The purpose of the AMA Guides is to provide a standardised objective approach to evaluating medical impairments.[9] Chapter 14 of the Guidelines includes the following:
Introduction
14.1 The cardiovascular system is discussed in Chapter 3, AMA5 (Heart and Aorta) and 4, AMA5 (Systemic and Pulmonary Arteries) (pp25–85). These chapters can be used to assess permanent impairment of the cardiovascular system with the following minor modifications.
14.2 It is noted that in this chapter there are wide ranges for the impairment values in each category. When conducting a WorkCover assessment, assessors should use their clinical judgement to express a specific percentage within the range suggested.
Exercise stress testing
14.3 As with other investigations, it is not the role of an assessor to order exercise stress tests purely for the purpose of evaluating the extent of permanent impairment.
14.4 If exercise stress testing is available, then it is a useful piece of information in arriving at the overall percentage impairment.
14.5 If previous investigations are inadequate for a proper assessment to be made, the assessor should consider the value of proceeding with the evaluation of permanent impairment without adequate investigations and data (see Chapter 1, Ordering of additional investigations).
[9] AMA Guides at 1.
Chapter 3 of the Guides relevantly states:
3.1aSome impairment classes refer to limitations in the ability to perform daily activities because of symptoms. When this information is subjective and possibly misinterpreted, it should not serve as the sole criterion upon which decisions about impairment are made. Rather, the examiner should obtain objective data about the extent of the limitation and integrate the findings with the subjective data to estimate the degree of permanent impairment. See the functional classifications of cardiac disease in Table 3-1.
Table 3-1
NYHA Functional Classification of
Cardiac Disease*Class
Description
I
Individual has cardiac disease but no resulting limitation of physical activity; ordinary physical activity does not cause undue fatigue, palpitation, dyspnea, or anginal pain.
II
Individual has cardiac disease resulting in slight limitation of physical activity; is comfortable at rest and in the performance of ordinary, light, daily activities; greater than ordinary physical activity, such as heavy physical exertion, results in fatigue, palpitation, dyspnea, or anginal pain.
III
Individual has cardiac disease resulting in marked limitation of physical activity; is comfortable at rest; ordinary physical activity results in fatigue, palpitation, dyspnea, or anginal pain.
IV
Individual has cardiac disease resulting in inability to carry on any physical activity without discomfort; symptoms of inadequate cardiac output, pulmonary congestion, systemic congestion, or anginal syndrome may be present, even at rest; if any physical activity is undertaken, discomfort is increased.
*Adapted from: Criteria Committee of the New York Heart Association. Diseases of the Heart and Blood Vessels: Nomenclature and Criteria for Disease. 6th ed. Boston, Mass: Little Brown & Co; 1964. This well-established classification is preferred over the newer classification introduced in the 7th edition.
When feasible, the physician should attempt to quantify limitations due to symptoms by observing the individual during exercise.
…
3.1bImpairment classes … are disease-specific and based on the NYHA classification system … The impairment classes reflect anatomic, physiologic, and functional abnormalities… The percentages of impairment reflect the severity of the condition and the extent to which the condition limits the abilities to do activities of daily living.
…
In summary, an evaluation of the cardiovascular system that falls within normal range reflects an individual who performs all activities of daily living without cardiovascular symptoms, has some reserve capacity that allows comfortable exercise without the development of major cardiovascular symptoms, has an LV ejection fraction that falls within normal limits, and completes at least 80% of age- and gender- predicted functional aerobic capacity during exercise stress testing.
Chapter 4 of the Guides relevantly states:
Introduction
This chapter provides criteria for evaluating permanent impairments of the systemic and pulmonary arteries as they affect an individual’s ability to function and perform activities of daily living. The information regarding medical evaluation, analysis of findings, and impairment criteria in Chapter 3, The Cardiovascular System: Heart and Aorta, remain applicable for this chapter. See Table 3-1 for the functional classification of cardiac disease.
…
4.4 Diseases of the Pulmonary Arteries
Primary pulmonary hypertension is a consequence of obliterative and plexiform changes of unknown etiology in the pulmonary arteriolar bed. Many other causes of pulmonary hypertension include parenchymal disease, left-sided HF, CHF and PVD (either from pulmonary emboli or systemic disease). Pulmonary venous and capillary system disorders can also produce pulmonary hypertension. All of these disorders are classified disorders of the pulmonary circulation for impairment assessment.
The physician should take a careful history of functional impairment and symptoms for individuals with pulmonary hypertension. Classic findings include a right ventricular (RV) lift and an increased intensity of the S2 pulmonic component. Pulmonary hypertension is often diagnosed by chest roentgenogram changes, RV hypertrophy, or ECG strain. The definitive assessment of pulmonary hypertension is made by PAP assessment with an echocardiogram or right heart catheterization.
4.4a Criteria for Rating Permanent Impairment Due to Pulmonary Hypertension
The degree of pulmonary hypertension can be classified by measurement of PAP or PA resistance. Impairment classification should be based on more than the observed PAP; also consider the presence or absence of signs and symptoms of right HF. Dyspnea is the most limiting symptom of pulmonary hypertension. Cyanosis may occur from right to left shunting, especially in individuals with pulmonary hypertension associated with CHF.[10]
[10] The AMA Guides at 3.1a and 4.1 define “HF” to mean heart failure. Although the AMA Guides do not define “CHF” I infer it means congestive heart failure.
Table 4-6 lists the impairment criteria for disorders of pulmonary circulation. The Guides follows the World Health Organisation (WHO) criteria for pulmonary hypertension classification.
Table 4-6 Criteria for Rating Permanent Impairment Due to Pulmonary Hypertension
Class 1
0%-9% Impairment of the Whole PersonClass 2
10%-29% Impairment of the Whole PersonClass 3
30%-49% Impairment of the Whole PersonClass 4
50%-100% Impairment of the Whole PersonNo symptoms or signs of right HF and mild pulmonary hypertension (PAP 40-50mm Hg) or a Doppler echocardiography-derived peak tricuspid velocity of 3.0-3.5 m/sec No symptoms or signs of right HF and moderate PA hypertension (PAP 51-75mm Hg) Moderate pulmonary hypertension (PAP> 75mm Hg)
and
signs and symptoms of right HF
or
symptoms of mild limitation (class 2) with any degree of pulmonary hypertensionSevere pulmonary hypertension (PAP>75 mm Hg)
or
symptoms of severe limitation (class 3 or 4) with any degree of pulmonary hypertension
The Guides then provide examples in respect of the various classes.
Class 1 contains an example that refers to a 43-year-old moderately obese man with no symptoms, whose echocardiogram revealed an estimated PAP of 45 mm Hg. He was rated at 0 per cent to 5 per cent WPI. It also contains an example of 48-year-old woman who has dyspnea with slight exertion, whose echocardiogram revealed an estimated PAP of 45 mm Hg. She was rated at 5 per cent WPI.
Class 2 contains an example of a 58-year-old woman who had fully recovered from a pulmonary embolism she had five years earlier. She has no current symptoms. Her echocardiogram revealed a PAP of 55 mm Hg. She was rated at 10 per cent to 15 per cent WPI. It also contains an example of a 38-year-old woman with no symptoms of heart failure whose echocardiogram revealed an estimated PAP of 60 mm Hg. She was rated at 15 per cent to 20 per cent WPI.
Class 3 contains an example of a 38-year-old woman who has external dyspnea and whose echocardiogram revealed an estimated PAP of 70 mm Hg. She was rated at 30 per cent to 40 per cent WPI. It also contains an example of a 58-year-old man who had a pulmonary embolism after arthroscopic surgery five years earlier. He has exertional dyspnea when playing tennis. He has moderate right ventricular enlargement and moderate tricuspid regurgitation. His echocardiogram revealed a PAP of 55 mm Hg. He was found to have moderate pulmonary hypertension and right heart failure. He was rated at 40 per cent to 49 per cent WPI.
The WHO criteria provides for functional assessment in terms which broadly reflect the contents of Table 3-1. They provide:
FUNCTIONAL ASSESSMENT*
A. Class I – Patients with pulmonary hypertension but without resulting limitation of physical activity. Ordinary physical activity does not cause undue dyspnea or fatigue, chest pain or near syncope.
B. Class II – Patients with pulmonary hypertension resulting in slight limitation of physical activity. They are comfortable at rest. Ordinary physical activity causes undue dyspnea or fatigue, chest pain or near syncope.
C. Class III – Patients with pulmonary hypertension resulting in marked limitation of physical activity. They are comfortable at rest. Less than ordinary activity causes undue dyspnea or fatigue, chest pain or near syncope.
D. Class IV – Patients with pulmonary hypertension with inability to carry out any physical activity without symptoms. These patients manifest signs of right heart failure. Dyspnea and/or fatigue may even be present at rest. Discomfort is increased by physical activity.
* Modified after the New York Heart Association Functional Classification.
The WHO criteria also makes the following provision for the evaluation of mild pulmonary hypertension:
Mild pulmonary hypertension is defined as a systolic pulmonary artery pressure of 40-50 mm Hg.
It distinguishes between asymptomatic and symptomatic individuals. In respect of symptomatic individuals, it recommends that signs of pulmonary hypertension warrant right heart catheterisation for confirmation of the haemodynamic findings. It further recommends that if the right heart catheterisation does not reveal pulmonary hypertension at rest, pulmonary haemodynamics be measured during exercise. Patients in whom mild pulmonary hypertension exists at rest, or develops with exercise, should be managed like other patients with pulmonary hypertension.
Appellant’s submissions
The appellant contends that he has an entitlement to a WPI assessment due to pulmonary hypertension under Table 4-6 of the AMA Guides notwithstanding the PAP reading is less than 40 mm Hg. This is because the deputy president made an unreviewable finding of fact that he suffers from pulmonary hypertension and suffers from signs and symptoms of pulmonary hypertension which is sufficient for an assessment to be made in accordance with Table 4-6. He submits that Chapter 4.4 of the AMA Guides does not require an abnormal PAP assessment before pulmonary hypertension can be diagnosed and rated. Table 4-6 provides for two streams of rating criteria: first, the PAP reading; and second, the functional limitation assessment. The “definitive assessment” of pulmonary hypertension merely means that a person with a PAP reading of 40 mm Hg or more has pulmonary hypertension even without any signs or symptoms, not that a person cannot have pulmonary hypertension unless they have a PAP reading of 40 mm Hg or more. The appellant contends that a qualifying PAP reading is proof of a rateable impairment without more, but the PAP reading is not definitive of the assessment of impairment. However, even without a qualifying PAP reading, a person can have a rateable impairment due to clinical signs and symptoms of pulmonary hypertension. This is consistent with the reference in class 3 and class 4 of Table 4-6 to “any degree of pulmonary hypertension” rather than a reference to a PAP reading or the categories of mild pulmonary hypertension or moderate hypertension referred to in classes 1 and 2 of the table. “Any degree of pulmonary hypertension” refers to diagnosed pulmonary hypertension, whatever the PAP reading at rest may be, including if that reading is less than 40 mm Hg. The appellant relies upon Chapter 1.57 of the WorkCover Guidelines which provides for conditions which are not covered by the WorkCover Guidelines / AMA5 in the following terms:
AMA5 states: “Given the range, evolution, and discovery of new medical conditions, the Guides cannot provide an impairment rating for all impairments… In situations where impairment ratings are not provided, the Guides suggest that physicians use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living…
The physician’s judgment, based upon experience, training, skill, thoroughness in clinical evaluation, and ability to apply the Guide’s criteria as intended, will enable an appropriate and reproducible assessment to be made of clinical impairment.”
This approach applies to any condition that is not covered by AMA5 or the WorkCover Guidelines.
The appellant submits that on the facts found by the judge, he has a class 3 30 per cent – 49 per cent impairment of the whole person, or in the alternative, a 29 per cent impairment of the whole person.
The respondent’s submissions
The respondent contends that the AMA Guides provide that the definitive assessment of pulmonary hypertension is made by PAP assessment with an echocardiogram or right-heart catheterisation. Further, while the AMA Guides provide that the criteria for rating permanent impairment due to pulmonary hypertension should be made based on more than the observed PAP, nonetheless, an abnormal PAP is a necessary prerequisite to rating permanent impairment due to pulmonary hypertension.
Given the evidence from the echocardiogram of the PAP assessment which disclosed a PAP at the upper end of the normal range, the respondent did not meet the necessary criteria for any rating of permanent impairment due to pulmonary hypertension. Accordingly, the Full Bench was correct in assessing the appellant’s rating at zero per cent.
Relevant principles
In HJ Heinz Company Australia Ltd v Kotzman & Ors[11] Kyrou J, as he then was, identified the general principles for interpreting the AMA Guides to the evaluation of permanent impairment as follows:[12]
The interpretation of the Guides is a question of law. The determination of a level of impairment is a question of fact.
It has been said that to the extent that an Act requires determinations of impairment to be made in accordance with the Guides, the Guides has the force of law and is a legislative document.
However, the Guides is, as its title suggests, a guide. It was written by expert medical practitioners and not by statutory draftspeople, and should not be overlaid with legalistic – or a lawyer’s precise – interpretation. It is of paramount importance to be faithful to the Guides’ plain words. The Guides should not be interpreted as if it was a statute.
The use of the Guides is designed to promote precision, certainty and consistency. Its purpose is to make as objective as possible the process of estimating impairment by reference to sufficient medical and non-medical information to justify the estimate.
If there is any inconsistency between the AC Act and the Guides, the AC Act will prevail. If there is any inconsistency between the text in the Guides and an example which seeks to illustrate what is said in the text, the text will prevail.
[citations omitted]
[11] [2009] VSC 311.
[12] [2009] VSC 311 at [24]-[28].
These principles were enunciated in respect of the Accident Compensation Act 1985 (Vic) (AC Act). They were affirmed by the Victorian Court of Appeal in Victorian WorkCover Authority v Eldson.[13]Notwithstanding textual differences between the AC Act and the WRC Act, they apply with equal force to the WRC Act.[14]
[13] [2013] VSCA 235 at [1], [49], (2013) 42 VR 434 at 435, 446.
[14] Clarke v Department for Health and Ageing [2016] SAET 31 at [74]-[76].
Kyrou J emphasised that the assessment of impairment must be undertaken in conformity with the AMA Guides given the requirement in the AC Act that the assessment must be in accordance with the Guides. His Honour considered that meant the methodologies, processes and criteria set out in the Guides for the relevant condition, body part or system must apply and adhere to any minimum or maximum values set out in the Guides for that condition, body part or system. Where the Guides contains a table that is applicable to a condition, body part or system, an assessment based on that table would not be in accordance with the Guides unless the categories, descriptions, criteria, ranges, adjustments and other elements of the table that are relevant to the condition, body part or system are adhered to and complied with. His Honour said that some provisions of the Guides, including some tables, provide alternative methodologies or set out ranges, and require the exercise of professional judgment in selecting the most appropriate methodology or in determining where in the range the relevant condition or body part falls. However, the Guides does not permit the exercise of professional judgment at large, unconstrained by the specific requirements of each methodology or table that it sets out. Once a particular methodology or table is selected, its requirements, including any limitations, must be applied in a manner set out by the Guides even if the outcome may appear sub-optimal. The point of the Guides is to arrive at an assessment that is the product of applying the Guides in accordance with its requirements. The Guides make clear that the protocols and methodologies it sets out are intended to be standardised processes which produce similar outcomes irrespective of who conducts the assessment.[15] This analysis was subsequently approved by the Victorian Court of Appeal in Gamble v Emerald Hill Electrical Pty Ltd & Ors.[16]
[15] [2009] VSC 311 at [45]-[47].
[16] [2012] VSCA 322 at [52], (2012) 38 VR 45 at 60-61.
This analysis also reflects the approach in Taylor v Mountain Pine Furniture Pty Ltd[17] where Bongiorno J said that the use of the AMA Guides was an attempt by the legislature to introduce some degree of objectivity into the assessment of impairment for compensation purposes. It represents a significant application of one of the fundamental principles of justice, that like cases should be treated alike. His Honour said nothing could discredit a compensation system more quickly than the idiosyncratic application of criteria to the determination of an injured person’s impairment and hence their entitlement to compensation at a particular level. Although the efficacy of the application of the AMA Guides to achieve a just result for injured people may be debated, as the law stands they must be applied regardless of any personal view of the assessor. While the interpretation of medical matters referred to in the AMA Guides and the exercise of clinical judgment must be left to the medical assessor who is applying them, it is not within that medical assessor’s remit to ignore an express direction contained in the Guides as to how a particular objective fact is to be treated in making an assessment.
[17] [2006] VSC 499 at [21] subsequently affirmed on appeal in Mountain Pine Furniture Pty Ltd v Taylor [2007] VSCA 146 at [27], (2007) 16 VR 659 at 668.
Against this background I turn to consider the correct interpretation of the AMA Guides. This is not without difficulty. There are latent errors in the Guides and some parts are difficult to reconcile.
Interpretation of the AMA Guides
The commencement point for the interpretation of the AMA Guides is recognition that the defining feature of the Guides is that it provides a standardised objective approach to evaluating medical impairments.[18]
[18] AMA Guides at 1.
An assessment of the degree of impairment a worker suffers as a result of pulmonary hypertension is to be determined in accordance with Chapter 4 of the AMA Guides. However, the impairment criteria in Chapter 3, particularly in Table 3-1, informs the undertaking of that assessment. The criteria for rating permanent impairment due to pulmonary hypertension in Table 4-6 is referable to Table 3-1. Table 3-1 is based on the WHO criteria for pulmonary hypertension classification referred to earlier in these reasons. This was common ground between the parties.
I accept that there is an error in class 3 of Table 4-6. It should refer to “moderate pulmonary hypertension (PAP 51-75 mm Hg)”. This was also common ground between the parties. It is apparent that there is an error in class 3 by comparing its criterion for moderate pulmonary hypertension with the criterion for severe pulmonary hypertension in class 4. Table 4-6 prescribes the same PAP criteria for moderate pulmonary hypertension in class 3 as is prescribed for severe pulmonary hypertension in class 4. As a result, it is easier to come within class 4 than class 3 because class 3 imposes an additional criterion. That is clearly inconsistent. Construing the prescription in class 3 of a PAP reading for moderate pulmonary hypertension, with the PAP reading for moderate PA hypertension in class 2 of Table 4-6, points clearly to the correct criterion in class 3 being a PAP reading range of 51-75 mm Hg. I will come back to this.
The invocation of class 2, 3 and 4 in Table 4-6 must be understood to refer to the classes referred to in Table 3-1. Chapter 4.4 of the AMA Guides states that Table 4-6 lists the impairment criteria for disorders of the pulmonary circulation and that the Guides follow the new WHO criteria for pulmonary hypertension classification which are found in the executive summary from the World Symposium On Primary Pulmonary Hypertension 1998 cited as a footnote. The terms of Table 3-1 as set out above reflect the provisions for functional assessment found in the WHO executive summary identified in that footnote to Chapter 4.4. In addition, that interpretation of the AMA Guides avoids the inconsistency that would otherwise exist if the reference in Table 4-6 to class 2, 3 and 4 was to be construed as an internal reference to the identified classes in Table 4-6.
The assessment of impairment due to pulmonary hypertension must be made in accordance with the criteria in Table 4-6. In my view the terms of Chapter 4.4 make clear that the definitive assessment of pulmonary hypertension is made by PAP assessment with an echocardiogram or right heart catheterisation. That is entirely consistent with the purpose of the AMA Guides in providing an objective standard for undertaking the assessment of permanent impairment. While the degree of pulmonary hypertension can be classified by the measurement of PAP, the impairment classification is not confined to the observed PAP. The presence or absence of signs and symptoms of right heart failure, dyspnea and cyanosis may also be considered in determining the degree of pulmonary hypertension. The degree of pulmonary hypertension falls into three classifications, namely, mild, moderate and severe. Each of those classifications is integral to which class in Table 4-6 the worker’s impairment falls within. Mild pulmonary hypertension defined as a PAP reading of 40-50 mm Hg is a prerequisite for assessment in accordance with class 1 of Table 4-6. Moderate pulmonary hypertension defined as a PAP reading of 51-75 mm Hg is a prerequisite for assessment in accordance with class 2 or class 3 of Table 4-6. Severe pulmonary hypertension defined as a PAP reading greater than 75 mm Hg is a prerequisite for assessment in accordance with class 4 of Table 4-6. Nonetheless, the PAP reading is not exhaustive of the criteria for rating permanent impairment due to pulmonary hypertension. As Chapter 4.4 and the terms of Table 4-6 establish, which class a worker’s impairment brings him or her within depends on the presence or absence of other prescribed symptoms or signs either clinically observed or clinically reported.
This interpretation, which makes the PAP assessment with an echocardiogram or right heart catheterisation the definitive assessment of pulmonary hypertension, is consistent with the examples provided in chapter 4.4, all of which provide a PAP reading by echocardiogram.
Accordingly, I reject the appellant’s submission that the reference in chapter 4.4 to “the definitive assessment of pulmonary hypertension” being made by PAP assessment with an echocardiogram or right heart catheterisation is to be construed not as definitive of the assessment but rather as being the best diagnosis. To construe “definitive assessment” as meaning the “best diagnosis” would be contrary to the ordinary grammatical meaning of that term. “Definitive” is defined in the Macquarie Dictionary[19] as meaning:
1. Having the function of deciding or settling; determining; conclusive; final; 2. Serving to fix or specify definitively; 3. Having its fixed and final form…
[19] Revised 3rd ed. 2001.
A PAP assessment either by echocardiogram or by right heart catheterisation is “definitive” in the sense that, irrespective of what other diagnostic indicia might suggest, the result of the PAP assessment is conclusive of which class in Table 4-6 the worker falls within for the purposes of rating permanent impairment due to pulmonary hypertension. This of course is subject to the fact that a worker suffering moderate pulmonary hypertension could fall within class 2 or class 3 of the table depending upon other signs and symptoms.
The assessment of rateable impairment involves a two-stage process. First, the assessor must determine the class in Table 4-6 within which the worker’s impairment is properly categorised. Second, the assessor must determine the percentage impairment suffered by the worker within the range of impairment prescribed by each class in Table 4-6. The percentage impairment is to be determined by the PAP assessment and, in the case of workers who fall within class 3 and 4, the additional criteria prescribed by those classes.
I also reject the alternative submission put by the appellant that the PAP assessment is concerned merely with diagnosis rather than the assessment of permanent impairment. That submission is clearly contrary to the specific reference in Chapter 4.4 to the definitive assessment of pulmonary hypertension being made by PAP assessment with an echocardiogram or right heart catheterisation. That passage is expressly confined to assessment rather than diagnosis (emphasis added).
In that context it is notable that interpretation of class 3 of Table 4-6 presents particular difficultly due to the use of the conjunctive “and” and the disjunctive “or”. While ascertaining the proper meaning of the criteria in class 3 is not easy I consider the criteria in class 3, like class 4 in the table, posits a binary choice. The first two categories which are joined by the conjunctive are a single, discrete criterion. The third category separated by the disjunctive also is a single, discrete criterion to be read in contradistinction to the conjunctive criterion. Class 3 requires that the worker suffers moderate pulmonary hypertension as defined as a PAP reading of between 51 and 75 mm Hg and signs and symptoms of right heart failure, or in the alternative, symptoms of mild limitation in accordance with class 2 of Table 3-1 (class II) together with any degree of pulmonary hypertension.
The reference to “any degree” of pulmonary hypertension must be understood in that context as referring to the degrees of mild, moderate or severe, given that for the purposes of rating permanent impairment due to pulmonary hypertension a minimum PAP reading of 40 mm Hg is required. The “degrees” of pulmonary hypertension, namely, mild, moderate and severe, should be read as exhaustive. That must be so because a PAP reading of less than 40 mm Hg does not evidence the existence of pulmonary hypertension. The PAP reading is definitive. “Any degree of pulmonary hypertension” is to be understood as a worker with a PAP reading of 40 mm Hg or higher. Class 3 must be construed in this way because to do otherwise would create an internal inconsistency between the requirement for moderate pulmonary hypertension on the one hand and any degree of pulmonary hypertension on the other which must include mild or severe as well moderate pulmonary hypertension. While this interpretation has the result that a worker’s rateable impairment for pulmonary hypertension can fall within class 4 when the worker has mild pulmonary hypertension as evidenced by a PAP reading of between 40 and 50 mm Hg, that depends upon the worker also experiencing symptoms of severe limitation within class 3 or 4 of Table 3-1.
I appreciate that this construction which accords a definitive role in the assessment of the rateable degree of permanent impairment for pulmonary hypertension to a PAP assessment cannot easily be reconciled with the terms of class 1 in Table 4-6. Class 1 provides disjunctive criteria for placing a worker’s impairment in that class. The criteria for placement within class 1 requires a PAP reading of between 40 and 50 mm Hg or a Doppler echocardiography-derived peak tricuspid velocity of 3.0-3.5 m/sec. Accordingly, a worker’s impairment can fall to be assessed in class 1 absent a PAP reading of 40-50 mm Hg. However, the alternative criterion in class 1 still posits an objective measure of mild pulmonary hypertension, like a PAP assessment. I am satisfied that this anomaly does not invalidate the interpretation I have adopted. It is to be remembered that the AMA Guides is not to be interpreted as if it is a statute.[20]
[20] HJ Heinz Company Australia Ltd v Kotzman & Ors [2009] VSC 311 at [26].
This leaves no scope for the operation of the appellant’s “two streams” submission. I reject the appellant’s submission that a worker can have a rateable impairment, without a qualifying PAP reading, on the basis of clinical signs and symptoms of pulmonary hypertension such as breathlessness. This contention was based on Chapter 1.57 of the WorkCover Guidelines, set out earlier in these reasons, which provides for conditions not covered by the WorkCover Guidelines or the AMA Guides. Chapter 1.57 does not apply to this case. The condition of pulmonary hypertension plainly is covered by the AMA Guides.
In addition, the “two streams” submission which would permit rateable impairment assessment for pulmonary hypertension based on clinical assessment would be contrary to the central purpose of the AMA Guides. First, it would be contrary to the express terms of Chapter 4.4 and Table 4-6 which prescribes the limited role clinical assessment plays in the assessment of rateable impairment for pulmonary hypertension. The AMA Guides do not provide for an assessment of rateable impairment to be conducted solely on the basis of clinical judgment at large. Rather, Table 4-6 provides a limited role for clinical judgment in rating permanent impairment due to pulmonary hypertension. That limited role is apparent on the face of the table which refers to signs and symptoms clinically observed or clinically reported. That limited role is additional to the defining prerequisite of an abnormal PAP reading of 40 mm Hg or greater.[21] Second, it would be contrary to the purpose of the AMA Guides which is to provide a standardised objective approach to the evaluation of medical impairment. The AMA Guides is intended to promote precision, certainty and consistency.[22]
[21] Or, for the purposes of class 1, a Doppler echocardiography-derived peak tricuspid velocity of 3.0-3.5 m/sec.
[22] HJ Heinz Company Australia Ltd v Kotzman & Ors [2009] VSC 311 at [27].
The appellant submits that he was unable to complete a stress test due to breathlessness. The deputy president accepted the appellant’s evidence in this regard and found that his inability to complete the stress test was due to symptoms of pulmonary hypertension. That finding does not affect the interpretation of the AMA Guides I have adopted. While the Guides make reference to stress tests, the definitive assessment of pulmonary hypertension is made by PAP assessment with an echocardiogram or right heart catheterisation. These tests are performed at rest.[23] In any event, the interpretation of the AMA Guides is not to be decided by reference to how the proper interpretation affects a particular individual.
[23] Evidence of Dr Hetzel, T 102.13-15.
Disposition of the appeal
The interpretation I have adopted was not that adopted by the deputy president. Contrary to the approach taken by the deputy president, permanent impairment due to pulmonary hypertension cannot be rated under the AMA Guides where the PAP reading is less than 40 mm Hg. Nonetheless, the deputy president found that the appellant suffered a 29 per cent WPI due to pulmonary hypertension.[24] The determination of a level of impairment is a question of fact.[25]
[24] [2018] SAET 67 at [78].
[25] HJ Heinz Company Australia Ltd v Kotzman & Ors [2009] VSC 311 at [24]; Frkic v Return to Work Corporation of South Australia (No. 2) [2020] SASCFC 59 at [28].
The appeal to the Full Bench of the South Australian Employment Court from the deputy president’s decision, like the appeal to this Court, is confined to a question of law.[26] It is not open to this Court on appeal to interfere with the factual finding made as to the level of impairment suffered by the appellant due to pulmonary hypertension. Neither was it open to the Full Bench to do so. Accordingly, I would allow the appeal. I would set aside the determination and orders made by the Full Bench that set aside the deputy president’s assessment of 29 per cent WPI on account of pulmonary hypertension and determined that the appellant does not have a rateable WPI for pulmonary hypertension. I would hear the parties on the question of whether it is necessary for this matter to be remitted either to the Full Bench or the deputy president and the orders that should be made given my reasons for judgment. I would hear the parties as to costs.
[26] Section 86(1) and s 86A(2) of the WRC Act. The provisions of the repealed Act continue to apply pursuant to clause 50(1) of Schedule 9 of the Return to Work Act 2014 (SA), which relevantly provides that an application or other proceedings commenced before the designated day may be continued and completed (and any appeals initiated or completed) under the repealed Act. The continued application of these provisions pursuant to the Transitional provisions in Schedule 9 is consistent with the approach taken by the Full Court in Kowalski v Cole & Ors [2015] SASCFC 169 at [18] which held that analogous provisions in the repealed Act, which repealed the Workers Compensation Act 1971 (SA) (1971 Act), but provided for the continued application of the 1971 Act in respect of a disability that was attributable to a trauma that occurred before the repealed date, operated with respect not only to the substantive provisions of the 1971 Act governing the substantive rights and obligations of workers and employers but also to provisions governing the jurisdiction, powers and procedures of the Industrial Court.
DAVID AJ: I would allow the appeal. I agree with the reasons of Stanley J and the orders proposed.
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