Northcott v Return to Work Corporation of South Australia - [2019] SASC 170

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules)
NORTHCOTT v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2019] SASC 170
Judgment of The Honourable Justice Stanley
27 September 2019
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW
Application for permission to appeal to the Full Court.
The issue in respect of which permission is sought is whether the applicant who, at trial, established that she suffered compensable injuries affecting her left thumb, left wrist and right wrist, is entitled to any further weekly payments pursuant to s 39 of the Return to Work Act 2014 (SA) (the Act) in circumstances where, at the time of the making of the claim for weekly payments, she was already in receipt of weekly payments as the result of a compensable injury to the right shoulder. This requires consideration of s 4(11), s 39, s 49 and s 188(1) of the Act.
Held, granting permission to appeal:
1. The differing outcomes arrived at by the majority and minority reasons of the Full Bench reflect a different construction of the provisions of the Act relating to the entitlement to weekly payments for incapacity under the Act. These differing constructions give rise to questions of general importance to the operation of the statutory scheme.
Return to Work Act 2014 (SA) s 4(11), s 39, s 49, s 188(1), referred to.
Return to Work v Robinson [2018] SASCFC 32, considered.

NORTHCOTT v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2019] SASC 170
STANLEY J:
Introduction

This is an application for permission to appeal to the Full Court from the decision of the Full Bench of the South Australian Employment Tribunal (SAET).
The issue in respect of which permission is sought is whether the applicant who, at trial, established that she suffered compensable injuries affecting her left thumb, left wrist and right wrist, is entitled to any further weekly payments pursuant to s 39 of the Return to Work Act 2014 (SA) (the Act) in circumstances where, at the time of the making of the claim for weekly payments, she was already in receipt of weekly payments as the result of a compensable injury to the right shoulder.
This requires consideration of s 4(11), s 39, s 49 and s 188(1) of the Act. Section 39 provides:
39—Weekly payments over designated periods for workers other than seriously injured workers
(1) Subject to this Act, if a worker, other than a seriously injured worker, suffers a work injury that results in incapacity for work, the worker is entitled to weekly payments in respect of that incapacity in accordance with the following principles:
(a) if any period of incapacity for work occurs within the period of 52 weeks from the date on which the incapacity for work first occurs (the first designated period)—
(i) for any period during the first designated period when the worker has no current work capacity—the worker is entitled to weekly payments equal to the worker's notional weekly earnings; and
(ii) for any period during the first designated period when the worker has a current work capacity—the worker is entitled to weekly payments equal to the difference between the worker's notional weekly earnings and the worker's designated weekly earnings;
(b) if any period of incapacity for work occurs within the period of 52 weeks beginning immediately after the end of the period that applies under paragraph (a) (the second designated period)—
(i) for any period during the second designated period when the worker has no current work capacity—the worker is entitled to weekly payments equal to 80% of the worker's notional weekly earnings; and
(ii) for any period during the second designated period when the worker has a current work capacity—the worker is entitled to weekly payments equal to 80% of the difference between the worker's notional weekly earnings and the worker's designated weekly earnings.
(2) For the purposes of this section, the designated weekly earnings of a worker will be taken to be the current weekly earnings of the worker in employment or self-employment (if any) but not so as to include a prescribed benefit.
(3) A worker has no entitlement to weekly payments under this section in respect of a work injury after the end of the period of 104 weeks from the date on which the incapacity for work first occurs (that is, after the end of the second designated period).
Section 4(11) provides:
For the purposes of this Act, the date on which an incapacity for work first occurs will be taken to be the first day in respect of which the worker has an entitlement to a payment under Part 4 Division 4 Subdivision 2 on account of that incapacity.
Section 49 provides:
49—Protection from excess payments
(1) A worker is not entitled under this Division to receive, in respect of 2 or more injuries, weekly payments in excess of the worker's notional weekly earnings.
(2) If a liability to make weekly payments is redeemed (whether under this Act or the repealed Act), the worker is taken, for the purposes of this Act, to be receiving the weekly payments that would have been payable if there had been no redemption.
(3) If a liability to make weekly payments is discharged under a deed of release under section 66(7), the injured party (within the meaning of that section) is taken, for the purposes of this Division, to be receiving the weekly payments that would have been payable if the deed of release had not been entered into.
Section 188(1) provides:
188—Injuries that develop gradually
(1) An injury (not being noise induced hearing loss) that develops gradually or is a disease will be taken to have occurred when the worker first becomes totally or partially incapacitated for work by the injury.
At trial the primary judge rejected the applicant’s claim for weekly payments of compensation in respect of the injury to her left thumb and wrists. On appeal to the Full Bench a majority, Judges Rossi and Farrell, dismissed the appeal. Lieschke DPM would have allowed the appeal.
The leading judgment of the majority was given by Deputy President Judge Rossi. Central to his Honour’s reasoning was the finding by the primary judge that the injuries to the applicant’s left thumb and wrists were interconnected causally and temporally with the injury to her right shoulder. From 26 November 2015 all of the injuries combined to produce circumstances of her having no current work capacity and therefore gave rise to an entitlement to weekly payments in accordance with s 39 of the Act. Entitlement to weekly payments arose from the incapacity resulting not only from the right shoulder injury but also from the injury to the left thumb and wrists. The applicant having received weekly payments equal to her notional weekly earnings (NWE) until 25 November 2016, her weekly payments were then lawfully reduced to 80 per cent of her notional weekly earnings in accordance with s 39(1)(b)(i) of the Act. This was because, as at 25 November 2016, the appellant had received with respect to incapacity arising from injuries affecting the right shoulder and also her left thumb and wrists, weekly payments for a period of 52 weeks. Judge Rossi considered this construction is reinforced by the operation of s 4(11) which makes clear, albeit for a particular purpose, that the date on which incapacity for work first occurs will be taken to be the first day in respect of which a worker has an entitlement to weekly payments on account of that incapacity. On the primary judge’s finding that was 26 November 2015 in respect of all injuries. The judge held that this construction is consistent with the evident purpose of s 49(1) to prevent double compensation.
Judge Rossi reasoned that the weekly payments that were made from 26 November 2015 satisfied the liability of the respondent to provide weekly payments to the applicant for the incapacity which flowed from all of the injuries found by the primary judge to have been sustained in compensable circumstances. As a result no question of double compensation arose.[1]
[1] Return to Work v Robinson [2018] SASCFC 32 at [139].
The dissenting judgment focussed on the scheme of the Act which Lieschke DPM found requires the sequential application of s 4, s 39 and s 49 to an assessment of a specific claim for weekly payments for an injury even where there is an existing entitlement to weekly payments in respect of a different incapacitating injury. Once the claimed wrists and thumb injuries were found to be compensable; to have at least collectively caused the applicant partial incapacity for work; and to have developed gradually; s 188(1) required identification of when the applicant first became partially incapacitated for work by them. That required identification of the first day in respect of which the applicant had an entitlement to weekly payments under the relevant provisions of the Act in accordance with s 4(11). That raised the question of the proper construction of the expression “entitlement to a payment” in s 4(11). Lieschke DPM held that the purpose of s 4(11) is to determine the commencement date for an entitlement period for any claimed injury. This is done by reference to the first date of an actual entitlement to payment for that injury. The statutory limitation on payment of double compensation in s 49 is limited to its express terms such that the cap on compensation is the amount of 100 per cent of NWE. Accordingly, s 49(1) recognises that two separate and incapacitating injuries can give rise to separate entitlements to payment of income maintenance under the Act subject only to those entitlements being capped at 100 per cent of the NWE rate. The scheme of the Act does not group or combine entitlements to weekly payments for different injuries. Accordingly, Lieschke DPM held that the worker is entitled to claim weekly payments at 100 per cent of NWE in the second year of incapacity resulting from a series of incapacitating injuries. On this basis, he would have found the applicant was entitled to weekly payments equal to 20 per cent of her NWE from 26 November 2016 for a period of 52 weeks.
The differing outcomes arrived at by the majority and minority reasons of the Full Bench reflect a different construction of the provisions of the Act relating to the entitlement to weekly payments for incapacity under the Act. These differing constructions give rise to questions of general importance to the operation of the statutory scheme. In issue is whether, when there are separate injuries which result in incapacity for work, in determining when incapacity first occurs for the purpose of s 4(11), is an “entitlement to payment” an actual entitlement or a nascent or inchoate entitlement?
In these circumstances I would grant permission to appeal.