Giameos v Return to Work Corporation of South Australia
[2019] SASC 118
•15 July 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Permission to Appeal)
GIAMEOS v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2019] SASC 118
Judgment of The Honourable Justice Hinton
15 July 2019
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE - GENERALLY
Application for permission to appeal a decision of the Full Bench of the South Australian Employment Tribunal to the Full Court of the Supreme Court.
On 1 February 2009 the applicant suffered compensable injuries including an injury to his left foot. He underwent surgery but had a poor recovery and was ultimately diagnosed with post-surgical scar compression of a nerve of the left foot. His specialist recommended that he have surgery to his left foot and that post-surgery he undergo a gait retraining program for approximately 12 months.
On 22 March 2018 the applicant applied to the respondent under s 33(17) of the Return to Work Act 2014 (SA) (RTWA) for the approval for such treatment following the surgery. The respondent notified its approval for the applicant to undergo the gait retraining program but on the proviso that the expense of the program would only be funded until 27 June 2018, being the date upon which the respondent asserted that the applicant’s entitlement to medical expenses would cease pursuant to s 33(20) of the RTW Act.
Before a single Deputy President Judge and on appeal to the Full Bench of the South Australian Employment Tribunal it was held that s 33(20) of the RTWA imposed a time limit on the entitlement to medical expenses, including medical expenses approved by the respondent under s 33(17). The applicant sought permission to appeal to the Full Court of the Supreme Court on the grounds that the Full Bench had misconstrued s 33(20) and had misapplied the provision to the facts.
Held, allowing the application, permission to appeal is granted on the two grounds of appeal as contained in the applicant’s draft Notice of Appeal dated 23 April 2019.
Return to Work Act 2014 (SA) s 33; South Australian Employment Tribunal Act 2014 (SA) s 68, referred to.
Giameos v Return to Work SA [2018] SAET 152; Giameos v Return to Work Corporation of South Australia [2019] SAET 55; Mills v Return to Work Corporation of South Australia [2019] SASC 56, considered.
GIAMEOS v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2019] SASC 118Application
HINTON J:
This is an application for permission to appeal pursuant to s 68 of the South Australian Employment Tribunal Act 2014 (SA). The application raises the question of the correct construction of s 33(20) of the Return to Work Act 2014 (SA) (RTWA). The primary judge conveniently summarised the circumstances in which the question arises as follows:[1]
Mr Giameos (the applicant) suffered compensable injuries on 1 February 2009 including to the left foot. He underwent surgery and other treatment but had a poor recovery. In 2017 he was referred to a specialist, Dr Griffin, who diagnosed a post-surgical scar compression of a nerve of the left foot. He recommended surgery by way of dissection of the nerve and such further surgical procedures as appropriate to free or cushion the nerve from surrounding tissues. An application for approval of that surgery under s 33(17) of the RTW Act was granted on 14 March 2018 by an agent of the respondent, Return to Work SA.
Dr Griffin was of the opinion that the applicant had developed gait abnormalities following the left foot injury. He recommended that following his proposed surgery, the applicant undergo a gait retraining program on a weekly basis for what would probably be a 12-month period. On 22 March 2018, the applicant applied for approval of funding for such treatment following the approved surgery. On 11 April 2018 the respondent advised by email of its approval for the applicant to undergo the proposed treatment on the proviso that the cost would only be funded until 27 June 2018, being the date upon which the respondent asserted the applicant’s entitlement to medical expenses would cease in accordance with the provisions of s 33(20) of the RTW Act.
[1] Giameos v Return to Work SA [2018] SAET 152 at [2]-[3] (Hannon DPJ).
Section 33(1) RTWA vests a right in a worker to be compensated for the cost of any of the services enumerated in s 33(2) RTWA where such cost is reasonably incurred by the worker in consequence of the worker having suffered a work injury. Under s 33(17) RTWA the worker is entitled to apply to the Corporation for approval to obtain the provision of any of the services enumerated in s 33(2) or otherwise to incur costs in securing such services on the basis that the Corporation will agree in advance to be liable for the relevant costs rather than the worker being required to claim compensation once the costs have been incurred. Section 33(20) RTWA provides:
(20) Subject to subsection (21), an entitlement to compensation under this section (including an entitlement to make an application under subsection (17)) comes to an end if the worker has not had an entitlement to receive weekly payments in relation to the work injury under Division 4 for a continuous period of 12 months (or has not had an entitlement to receive weekly payments under Division 4 and a period of 12 months has expired) (insofar as costs are incurred after the end of that period).
Section 33(21) RTWA is not presently relevant.
Before a single Deputy President Judge and on appeal to the Full Bench of the South Australian Employment Tribunal[2] it was held that s 33(20) RTWA imposes a time limit on the entitlement to medical expenses conferred by s 33(1) RTWA and approved under s 33(17) RTWA.
[2] Giameos v Return to Work Corporation of South Australia [2019] SAET 55 (Calligeros DPJ, Lieschke DP and Ardlie DPM).
Taken in isolation and literally construed s 33(20) conditions the continuation of entitlements under ss 33(1) and 33(17) to the occurrence of a factum, but otherwise imposes no time limit. It is unnecessary to canvas the construction arguments advanced before the Deputy President Judge and the Full Bench and in support of this application. Suffice it to say neither the Deputy President Judge nor the Full Bench invoked a literal construction of s 33(20).
Plainly, the construction of s 33(20) raises a question of law. In Mills v Return to Work Corporation of South Australia I said:[3]
The requirement that permission be obtained is discretionary; it is not enough then that an appeal may concern a question of law. The discretion is not fettered save by the purpose it serves. Obviously, the requirement that permission must be obtained is intended as a means whereby this Court may control the flow of business from the Full Bench. In addition, the appellate jurisdiction conferred on this Court by s 68 of the South Australian Employment Tribunal Act 2014 (SA) being confined to questions of law is intended to permit this Court to superintend the Full Bench of the Tribunal (including a Full Bench of the South Australian Employment Court) in the discernment and application of the law. The discretion whether to grant permission to appeal must be exercised with this in mind. Merit review forms no part of this Court’s function. It follows that generally a grant of permission cannot be expected unless the question of law raised is one of wider importance, or concerns conflicting authority, or it is otherwise in the interests of justice that it be considered. It is to be expected that the factual context in which the question arises must provide a suitable vehicle for its consideration and determination and that the appeal is reasonably arguable and enjoys some prospects of success.
[3] [2019] SASC 56 at [21].
In my view the construction of s 33(20) RTWA raises a question of general importance to the application of the RTWA that should be considered by the Full Court. I would grant Mr Giameos permission to appeal on the two grounds contained in his draft Notice of Appeal dated 23 April 2019.
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