Dallimore v Return to Work Corporation of South Australia
[2020] SASC 100
•15 June 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Permission to Appeal in Private)
DALLIMORE v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2020] SASC 100
Judgment of The Honourable Justice Doyle
15 June 2020
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - QUESTION OF LAW - PARTICULAR CASES
Application for leave to appeal in relation to construction of American Medical Association Guides to the Evaluation of Impairment (Fifth Edition). Proposed grounds raise arguable questions of law. Application for leave to appeal granted.
Workers Rehabilitation and Compensation Act 1986 (SA) s 43, s 43A, referred to.
Dallimore v Return to Work SA [2017] SAET 72; Return to Work Corporation of South Australia v Dallimore [2020] SAET 77, considered.
DALLIMORE v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2020] SASC 100Civil
DOYLE J: This is an application by Mr Dallimore for leave to appeal from a decision of the Full Bench of the South Australian Employment Tribunal.[1]
[1] Return to Work Corporation of South Australia v Dallimore [2020] SAET 77.
Mr Dallimore was injured when he fell at work on 16 November 2007 and fractured his left leg. His injuries (following surgery in which he developed a deep vein thrombosis in his leg and consequential pulmonary embolism with multiple small lung infarctions) included pulmonary hypertension. He brought a claim for compensation, and at trial a Deputy President made orders based upon a finding, inter alia, of an assessment of 29 per cent whole person impairment (“WPI”) on account of his pulmonary hypertension. The finding of pulmonary hypertension was based upon expert evidence supporting this conclusion, despite Mr Dallimore having a PAP[2] reading of less than 40 mmHg.
[2] Pulmonary artery pressure at rest.
There was an appeal and cross-appeal to the Full Bench. The Full Bench allowed the appeal, and set aside the Deputy President’s assessment of 29 per cent WPI, substituting a determination that Mr Dallimore does not have a rateable impairment for pulmonary hypertension.
The Full Bench’s determination that Mr Dallimore did not have a rateable impairment for pulmonary hypertension turned on its construction of the American Medical Association Guides to the Evaluation of Permanent Impairment (Fifth Edition) (“AMA 5”), and in particular its construction of Table 4-6 (headed “Criteria for Rating Permanent Impairment Due to Pulmonary Hypertension”) in the context of chapters 3 and 4 of AMA 5.
Applying the principle of construction to the effect that general provisions yield to more specific provisions within the same instrument, the Full Bench held that the more general provisions of chapter 3 must yield to the specific provisions within chapter 4.4. On the Full Bench’s reasoning, it followed that a worker was only entitled to an assessment of whole person impairment in respect of a permanent impairment due to pulmonary hypertension if the worker has a PAP assessment with an echocardiogram or right heart catheterization that demonstrates pulmonary hypertension (that is, a PAP reading of 40 mmHg or greater). And as there was no evidence that Mr Dallimore had an abnormal PAP, he did not meet the threshold for assessment and the only conclusion open was that he had a zero per cent WPI for pulmonary hypertension.
In so holding, the Full Bench acknowledged that it had reached a different construction of AMA 5 to the construction adopted in an earlier decision of the Full Bench in respect of the same worker.[3] After having regard to the provisions of chapter 3, and the introductory provisions of Chapters 4 and 14, the Full Bench in that earlier decision had concluded that a measured PAP was no more than one of a number of indicators that could be relied upon in making an assessment, and that the absence of a measured PAP within one of the ranges indicated in Table 4-6 was not decisive and did not preclude an assessment based upon the clinical judgement of an assessor. While the observations of the earlier Full Bench on this issue of construction were strictly speaking obiter dictum, they were nevertheless considered observations made following full argument.
[3] Dallimore v Return to Work SA [2017] SAET 72.
Mr Dallimore seeks leave to appeal on the following two grounds:
1. In the construction of ss 43, 43A of the Workers Rehabilitation and Compensation Act 1986 (SA), and chapters 3 and 4 of AMA 5, particularly chapter 4.4 and table 4-6, the Full Bench conflated the diagnosis of pulmonary hypertension and the assessment of permanent impairment due to pulmonary hypertension.
2. Based on the factual findings made by the trial judge that the appellant suffered from pulmonary hypertension which caused the appellant to become breathless with relatively limited activity and to feel tired and fatigued after activity, the Full Bench misconstrued and misapplied chapters 3 and 4 of AMA 5, particularly chapter 4.4 and table 4-6:
2.1.in concluding variously that the appellant had a zero % whole person impairment for pulmonary hypertension or no assessable impairment for pulmonary hypertension;
2.2.in not finding that the appellant had a class 3 impairment rating of 30% - 49% whole person impairment due to pulmonary hypertension.
The proposed grounds of appeal challenge the Full Bench’s construction of the relevant aspects of AMA 5, and as such raise questions of law. In my view, the challenge to the Full Bench’s construction is reasonably arguable. While the matters advanced by Mr Dallimore in support of his contended construction of the relevant provisions of AMA 5 go beyond those relied upon in the earlier decision of the Full Bench to which I have referred, I am fortified in my conclusion as to the arguability of the proposed appeal by the existence of that decision.
The issue is one of significant importance to Mr Dallimore’s entitlements, and of potential significance more generally.
I grant leave to appeal on both proposed grounds of appeal.
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