Frkic v Return to Work Corporation of South Australia

[2020] SASC 42

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Permission to Appeal)

FRKIC v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA

[2020] SASC 42

Judgment of The Honourable Chief Justice Kourakis

27 March 2020

WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - RIGHT OF APPEAL

Application brought by a worker for permission to appeal against a decision of the Full Bench of the South Australian Employment Tribunal (the Full Bench and the SAET respectively).

That decision concerns the proper construction of provisions of Chapter 15 of the American Medical Association Guidelines for the Evaluation of Permanent Impairment and the Impairment Assessment Guidelines (the IAG) in the assessment of the permanent impairment of the worker, who suffered a traumatic work injury to his L2 vertebra.  The worker also suffered pre-existing ankylosing spondylitis for which the Deputy President, who presided over the trial, made a substantial deduction when assessing permanent impairment.  The Full Bench dismissed the worker’s appeal against the decision of the Deputy President.

The worker seeks to appeal on the basis that the Full Bench erred in its construction of s 22(8)(g) of the RTW Act, which requires, in assessing permanent impairment, a deduction for impairment suffered before the relevant work injury that was caused by a previous injury, subject to any contrary provision in the IAG.

Held, refusing permission to appeal:

1. The construction given to the IAG is not on its face inconsistent with s 22(8)(g) of the RTW Act.

2.  The proposed appeal is not reasonably arguable.

Return to Work Act 2014 (SA) s 22; Impairment Assessment Guidelines  ; American Medical Association Guidelines for the Evaluation of Permanent Impairment (5th edition), referred to.
Frkic v Return to Work SA [2019] SAET 1; Frkic v Return to Work Corporation of South Australia [2020] SAET 16, considered.

FRKIC v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2020] SASC 42

Civil:  Permission to Appeal

1. KOURAKIS CJ:    This is an application brought by a worker for permission to appeal against the decision of the Full Bench of the South Australian Employment Tribunal (the Full Bench and the SAET respectively) in Frkic v Return to Work Corporation of South Australia.[1]The decision concerns the proper construction of provisions of Chapter 15 of the American Medical Association Guidelines for the Evaluation of Permanent Impairment (the AMA5 Guidelines) and the Impairment Assessment Guidelines (the IAG) made pursuant to s 22 of the Return to Work Act 2014 (SA) (the RTW Act) in the assessment of the permanent impairment of the worker, who suffered a traumatic work injury to his L2 vertebra. The worker also suffered pre-existing ankylosing spondylitis which had caused the fusion of his lumbar spine. The worker seeks to appeal on the basis that the Full Bench erred in its construction of s 22(8)(g) of the RTW Act and the IAG or, in the alternative, that it disregarded s 22(8)(g). That sub‑paragraph requires an assessment of permanent impairment to take into account the principle that ‘any portion of an impairment that is due to a previous injury … that caused the worker to suffer an impairment before the relevant work injury is to be deducted for the purposes of an assessment, subject to any provision to the contrary made by the [IAG]’.

   [1]    [2020] SAET 16.

2. The Deputy President, who presided over the trial, made a substantial deduction on account of the worker’s ankylosing spondylitis when assessing his permanent impairment.[2] The Deputy President and the Full Bench accepted that that result was harsh in the applicant’s particular circumstances because, notwithstanding his pre‑existing condition, he was very active and highly functioning before the work injury. However, the Full Bench rejected the worker’s contention that the result was absurd or unintended having regard to the manifest purpose of the RTW Act and the IAG to standardise awards and exclude impairments arising out of pre-existing conditions.

   [2]    Frkic v Return to Work SA [2019] SAET 1 at [66].

3. The SAET is a specialist court. The provisions of the AMA5 Guidelines and IAG are intricate medical guidelines and their interaction is complex. The decision of the Deputy President was affirmed by the unanimous decision of the Full Bench. The construction given to the IAG is not on its face inconsistent with s 22(8)(g) of the RTW Act.

4. The proposed appeal is not reasonably arguable.  I refuse permission to appeal.