Khan v Return to Work Corporation of South Australia

[2019] SASC 46

SUPREME COURT OF SOUTH AUSTRALIA

(Applications Under Various Acts or Rules: Permission to Appeal)

KHAN v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA

[2019] SASC 46

Judgment of The Honourable Justice Stanley

28 March 2019

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA

WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE

Application for permission to appeal to the Full Court of the Supreme Court on questions of law from a decision of the Full Bench of the South Australian Employment Tribunal (the Tribunal).

The applicant was a worker who suffered compensable injuries, including to his right knee. The Tribunal awarded him lump sum compensation in an amount of $61,368 pursuant to section 43 of the repealed Workers Rehabilitation and Compensation Act 1986 (SA) (the repealed Act).

The applicant later underwent a total right knee replacement and made a further claim for compensation pursuant to section 43 of the Repealed Act on the basis that he was suffering an increased whole person impairment as a result of the surgery. A single Judge of the Tribunal rejected the applicant’s claim.

The Full Bench of the Tribunal dismissed the applicant’s appeal against the Tribunal’s decision.

The applicant appeals to the Full Court of the Supreme Court on the following grounds:

1. The majority of the Full Bench misconstrued the provisions of s 43 and s 43A of the repealed Act and Regulation 5 of the Return to Work (Transitional Arrangements) (General) Regulations 2015 (SA) in concluding that a determination of impairment resulting from a compensable injury precluded a subsequent claim for a different and increased impairment even if the increased impairment resulted from a deterioration or other change in circumstances following the occasion of the first assessment and that it was intended that there be only one assessment of impairment under the repealed Act.

2.  Judge Calligeros exceeded his jurisdiction in finding there was no good basis for a further assessment when this was not the subject of evidence or findings at first instance.

3. The majority of the Full Bench misconstrued or misapplied s 43A(9)(b) of the repealed Act in the circumstances of the assessment of impairment following the applicant’s total knee replacement undergone in respect of a compensable injury.

4. Judge Calligeros erred in his approach to whether the appeal raised a question of law in finding no question of law arose on what he called the deduction issue, which concerned the construction and application of s 43A(9)(b) of the repealed Act.

Held (per Stanley J):

1. It is arguable that s 43 of the repealed Act permitted a further claim for lump sum compensation for permanent impairment where there had been deterioration of a body part following an earlier assessment. If the ground was successful it has the potential to significantly affect the entitlements of the applicant and other claimants in his position.

2. The construction of s 43A(9)(b) of the repealed Act is significant to the operation of the Return to Work Act 2014 (SA).

3.  Permission granted on grounds 1 and 3.

4.  Permission refused on grounds 2 and 4.

Workers Rehabilitation and Compensation Act 1986 (SA) (repealed) s 43, s 43A; Return to Work (Transitional Arrangements) (General) Regulations 2015 (SA) reg 5; Return to Work Act 2014 (SA) s 22(8)(b), s 22(1), s 58(9), referred to.
Mick Lucas & Son Pty Ltd v Licensing Commissioner (1987) SASR 312; Angas Park Cellars Pty Ltd v Nuriootpa Wine Inn Motel [2000] SASC 130; R v Burgess (1989) 150 LSJS 394, considered.

KHAN v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2019] SASC 46

Permission to Appeal to the Full Court

STANLEY J:

Introduction

1. This is an application for permission to appeal to the Full Court on questions of law from a decision of the Full Bench of the South Australian Employment Tribunal (the Tribunal) pursuant to s 68 of the South Australian Employment Tribunal Act 2014 (SA) (SAET Act).

2. The applicant seeks permission to appeal from a decision of the Full Bench dismissing his appeal from a decision of McCusker J which rejected his claim for lump sum compensation for non-economic loss pursuant to s 43 of the Workers Rehabilitation and Compensation Act 1986 (SA) (the repealed Act).

3. The background to the application is that the applicant was a worker who suffered compensable injuries, including to his right knee, in January 2009. He claimed lump sum compensation for non-economic loss pursuant to s 43 of the repealed Act. On 24 April 2013 consent orders were made by the Tribunal awarding him lump sum compensation in an amount of $61,368 on the basis that he was suffering a whole person impairment (WPI) of 26 per cent as a result of impairments to various parts of his body including his right knee. The right knee was assessed as a nine per cent WPI.

4. On 27 May 2013, i.e. just over one month later, the applicant underwent a total right knee replacement. Subsequently the applicant made a further claim pursuant to s 43 for lump sum compensation for his right knee as a result of what he claimed was an increased WPI attributable to his right knee as a result of the surgical replacement.

5. Regulation 5 of the Return to Work (Transitional Arrangements) (General) Regulations 2015 (SA) preserves the continued operation of s 43 of the repealed Act. Sub-regulation 5(4) of the Regulations allows for compensation where a previous determination or order has not covered all aspects of the non-economic loss suffered by the worker.

6. At first instance, McCusker J found that the worker had not suffered any new injury in the primary or secondary sense of the repealed Act.  He found that the applicant was claiming for the additional impairment of his right knee as a result of the surgical replacement.

7. McCusker J dismissed the further claim for compensation pursuant to s 43 on the basis that the claim was barred by the doctrine of res judicata or cause of action estoppel. Any claim for injury to the applicant’s right knee merged in the consent orders of the Tribunal made on 24 April 2013. McCusker J rejected the applicant’s submission that he was claiming for the impairment to other parts of his body, namely, the tibia and the femur, as there was no evidence to that effect. The injury was to his right knee which is now constituted by the prosthesis. McCusker J further found that if the claim had been allowed he necessarily would have made a reduction for pre-existing impairment pursuant to s 43A(9)(b) of the repealed Act and the Guidelines made thereunder.

8. On appeal to the Full Bench, in separate reasons, Judge Hannon and Judge Calligeros dismissed the appeal.  Deputy President Lieschke would have allowed the appeal. 

9. Judge Hannon considered that the repealed Act did not permit more than one claim for compensation with respect to impairment of a body part where a claim in respect of permanent impairment to that body part had been made and compensated by a determination or consent order.  It did not permit further claims with respect to different and increased impairment assessments of the same body part, whether or not that increased impairment resulted from a deterioration or other change in circumstances following the occasion of the first assessment.  His Honour held that reg 5(4) permitted claims in respect of body parts not encompassed by a determination or order made before 1 July 2015, but not the body part the subject of the earlier assessment or order.  His Honour also held that had the applicant been entitled to maintain a further claim, then the further entitlement to a lump sum would be subject to a deduction for the prior impairment.  The extent of the impairment is to be assessed having regard to changes in the signs and the symptoms following treatment. 

10. Judge Calligeros held that as a matter of construction the repealed Act only permitted one award of a lump sum for permanent impairment for a particular impairment. The language of s 43 and s 43A and concepts of permanence, stability and maximum medical improvement found in the WorkCover Guidelines (the Guidelines) suggest it was intended there only be one assessment of an impairment. His Honour adopted the same reasoning as Judge Hannon in relation to the reg 5(4) issue. As the applicant had previously made a claim for lump sum compensation in relation to his right knee, reg 5(4) had no application to the matter. He held there was no proper basis for suggesting that reg 5(4) allows a further assessment of permanent impairment in relation to the applicant’s right knee to be undertaken, given the application of the doctrines of res judicata and issue estoppel.   Judge Calligeros also adopted the approach taken by Judge Hannon on the deduction issue.

11. Deputy President Lieschke would have allowed the appeal.  As matter of statutory construction he considered there was no impediment to a further assessment of lump sum compensation for the additional impairment the applicant suffered to his right knee as a result of the total knee replacement.  Further, he considered that reg 5(4) created an additional criterion for permitting a further claim.  Finally, he considered that there was no scope as a matter of fact for any deduction, given the medical evidence. 

12. The applicant seeks permission to appeal on four grounds.  They are:

    ·First, that the majority of the Full Bench misconstrued the provisions of s 43 and s 43A of the repealed Act and Regulation 5 of the Return to Work (Transitional Arrangements) (General) Regulations 2015 (SA) in concluding that a determination of impairment resulting from a compensable injury precluded a subsequent claim for a different and increased impairment even if the increased impairment resulted from a deterioration or other change in circumstances following the occasion of the first assessment and that it was intended that there be only one assessment of impairment under the repealed Act.

    ·Second, that Judge Calligeros exceeded his jurisdiction in finding there was no good basis for a further assessment when this was not the subject of evidence or findings at first instance.

    ·Third, that the majority of the Full Bench misconstrued and/or misapplied s 43A(9)(b) of the repealed Act in the circumstances of the assessment of impairment following the applicant’s total knee replacement undergone in respect of a compensable injury.

    ·Fourth, Judge Calligeros erred in his approach to whether the appeal raised a question of law in finding no question of law arose on what he called the deduction issue, which concerned the construction and application of s 43A(9)(b) of the repealed Act.

13. The applicant submits that the grounds of appeal raise two main questions of law. First, whether on the proper construction of s 43 and s 43A of the repealed Act there can be only one claim (or one assessment) in respect of the impairment resulting from the compensable injury. Second, whether on the proper application of s 43A(9)(b) of the repealed Act there was any impairment from an unrelated injury or cause to be disregarded in making the assessment.

14. The applicant contends that each of those questions should have been answered in the negative. 

15. The applicant submits that these questions are reasonably arguable and are both of significance to the applicant and of general importance to the Scheme as the provisions of s 22(8)(b) of the Return to Work Act 2014 (SA) (RTW Act) are in identical terms to s 43A(9)(b) of the repealed Act.

16. For permission to be granted the appeal must be reasonably arguable and the subject matter of the appeal of sufficient substance to justify the costs of the appeal.[1]  The appeal must raise matters of substantial importance.[2] 

    [1]    Mick Lucas & Son Pty Ltd v Licensing Commissioner (1987) 45 SASR 312; Angas Park Cellars Pty Ltd v Nuriootpa Wine Inn Motel [2000] SASC 130.

    [2]    R v Burgess (1989) 150 LSJS 394.

17. I would grant permission to appeal on ground 1. It raises a significant issue of construction. The proper construction of s 43 of the repealed Act is critical to the issue of whether res judicata or cause of action estoppel bars the applicant’s claim. 

18. Pursuant to s 43(1) of the repealed Act, a worker who suffered a compensable injury resulting in permanent impairment was entitled to lump sum compensation for non-economic loss. Section 43A required the assessment of that impairment to be made in accordance with the Guidelines, after the injury had stabilised and to be based on the worker’s current impairment as at the date of assessment.[3] Pursuant to the Guidelines the assessor is to make no allowance for expected future deterioration of an assessable impairment that is stable for the foreseeable future.[4] 

    [3] Repealed Act s 43A(8).

    [4]    WorkCover Guidelines clause 1.24.

19. The repealed Act did not expressly provide that there could be only one claim for assessment of a permanent impairment resulting from a compensable injury unlike the terms of s 22(10) and s 58(9) of the RTW Act. 

20. Given this statutory context I am satisfied that it is arguable that s 43 of the repealed Act permitted a further claim for lump sum compensation for permanent impairment where there had been a deterioration of a body part following an earlier assessment. In those circumstances it is arguable the claim would not be barred by the doctrine of res judicata or cause of action estoppel. I am reinforced in this view by the terms of s 43(7) of the repealed Act which provided that if a compensable injury consisted of the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior compensable injury and compensation by way of lump sum had been previously paid pursuant to that section, any lump sum payable was to be reduced by the amount of the previous payment unless such a reduction was incorporated into the provisions of the Guidelines. That provides some support for the proposition that a worker can make more than one claim pursuant to s 43 where there has been a deterioration et cetera of a body part as the result of a further compensable injury which increases the degree of impairment of a part of the worker’s body for which the worker has previously received lump sum compensation pursuant to s 43.

21. Accordingly, I am satisfied that the ground is arguable.  I am further satisfied that if the ground was successful it has the potential to significantly affect the entitlements of the applicant and other claimants in his position. 

22. I would also grant permission to appeal on ground 3. The total knee replacement surgery was required in consequence of the compensable injury to the right knee. Section 43A(9)(b) of the repealed Act required the assessor to disregard impairments from unrelated injuries or causes in making an assessment. The subject claim is for assessment of the impairment caused by the total knee replacement surgery. I am satisfied it is arguable whether the pre-existing osteoarthritis provided a basis for the reduction McCusker J considered was required had there been an entitlement to a further assessment. The construction of this provision is significant to the operation of the RTW Act. That warrants a grant of permission to appeal.

23. I would refuse permission to appeal on ground 2 and ground 4.  Properly understood, ground 2 is concerned with findings of fact.  Ground 4 seeks to agitate the nature of the existence of a question of law for the purposes of s 26I of the SAET Act.  In my view that matter is not attended by sufficient doubt to warrant a grant of permission to appeal to the Full Court. 

24. I would grant permission to appeal on grounds 1 and 3.  I would refuse permission to appeal on grounds 2 and 4.