Onody v Return to Work Corporation of South Australia
[2019] SASCFC 56
•24 May 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ONODY v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2019] SASCFC 56
Judgment of The Full Court
(The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice Parker)
24 May 2019
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE
WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION
Appeal against a decision by the Full Bench of the South Australian Employment Tribunal answering a question of law reserved for its consideration.
In 1996 Mr Onody was paid $8,310.60 lump sum compensation for non-economic loss pursuant to section 43 of the Workers Rehabilitation and Compensation Act 1986 for noise induced hearing loss. He was assessed as having an impairment agreed to be the equivalent of a six per cent whole person impairment.
In 2015 Mr Onody claimed lump sum compensation for non-economic loss pursuant to section 58 of the Return to Work Act 2014 (SA). He was assessed as having a nine per cent whole person impairment. The Return to Work Corporation determined that, for the purpose of determining entitlement to lump sum compensation under section 58, Mr Onody’s pre-existing six per cent impairment was to be deducted from his nine per cent impairment and, because the differential was less than the five per cent threshold prescribed by subsection 58(2), he was not entitled to any lump sum compensation.
Mr Onody filed an application in the Tribunal for review of the Corporation’s decision. A presidential member stated a question of law to the Full Bench whether Mr Onody’s whole person impairment must be assessed at zero or at $10,843, being the compensation attributable to a nine per cent whole person impairment of $18,756 less the $8,310.60 awarded in 1996. The Full Bench answered the question in favour of the first alternative.
Mr Onody appeals against the Full Bench’s decision. He contends that the effect of paragraph 1.30 of the Impairment Assessment Guidelines made by the Minister under section 22 of the Act is that, when a current work injury consists of an aggravation of a previous work injury in respect of which the worker was paid lump sum compensation for non-economic loss, the gross impairment is to be used for the purpose of both the calculation and the threshold. In the alternative, he contends that subsection 188(2) has the effect that, in a case of noise-induced hearing loss, the gross impairment is to be so used.
Held by the Court (allowing the appeal and answering the question in favour of the second alternative):
1. (a) (per Blue J, Parker J agreeing) Paragraph 1.30 of the Guidelines operates such that, when a current work injury consists of an aggravation of a previous work injury in respect of which the worker was paid lump sum compensation for non-economic loss, the gross impairment is to be used for both the calculation and the threshold and the amount of the prior payment is to be deducted from the amount applicable to the gross impairment (at [35] per Blue J and [112]-[116] per Parker J).
(b) (per Stanley J dissenting on this point) Paragraph 1.30 of the Guidelines operates such that the net impairment is to be used for the calculation of the threshold and subject to the threshold the gross impairment is to be used for the calculation with the amount of the prior payment to be deducted from the amount applicable to the gross impairment (at [70]-[74]).
2. (per Stanley J, Parker J agreeing, Blue J not deciding) In a case of noise induced hearing loss, section 188 provides that the gross impairment attributable to noise induced hearing loss is taken to have occurred immediately before notice of the injury was given in 2015, entitling Mr Onody to lump sum compensation of $18,756, from which is to be deducted the amount of the previous payment of $8,310.60 (at [101] per Stanley J and [123] per Parker J).
3. Appeal allowed. Order by the Full Bench set aside. In lieu of the Full Bench’s answer, the following answer be substituted:
“For the purposes of section 58 of the Return to Work Act 2014, the applicant’s whole person impairment on account of noise induced hearing loss should be assessed at nine percent. The compensation payable pursuant to section 58 should be assessed as the amount of compensation attributable to a 9% whole person impairment for a 2015 injury less the $8,310.60 awarded to the applicant in 1996.” (at [41] per Blue J, [102] per Stanley J and [124] per Parker J).
Acts Interpretation Act 1915 (SA) ss 14A, 19(1)(b), 19(2)(a); Return to Work Act 2014 (SA) ss 22, 22(8)(g), 56, 56(2), 56(6), 56(7), 58, 58(2), 58(7), 58(8), 188, 188(2), 188(3); Workers Compensation Act 1971 (SA) (repealed) ss 69, 69(8), 69(9), 74; Workers Rehabilitation and Compensation Act 1986 (SA) (repealed) ss 31, 43, 113, 113(2), referred to.
Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; Return to Work Corporation of South Australia v Preedy (2018) 131 SASR 86, applied.
Arrowcrest Group v Markowski (1991) 55 SASR 557; General-Motors Holdens Pty Ltd v Barkway (1975) 11 SASR 381; Department of Health and Ageing v Li (2018) 130 SASR 578; Onody v Return to Work SA [2018] SAET 45; Return to Work Corporation v Renfrey [2019] SASCFC 26; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; WorkCover Corporation v Perre (1991) 55 SASR 557, discussed.
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Commissioner for Railways v Bain (1965) 112 CLR 246; Return to Work Corporation of South Australia v Watkins [2017] SASCFC 149; Sporsen v General Motors-Holden Ltd (1984) 37 SASR 331; State Government Insurance Commission v Clift (1990) 54 SASR 52, considered.
ONODY v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2019] SASCFC 56Full Court: Blue, Stanley and Parker JJ
BLUE J:
This is an appeal against a decision by the Full Bench of the South Australian Employment Tribunal answering a question of law reserved for its consideration that the appellant Leslie Onody’s whole person impairment must be assessed at zero because it is less than the five per cent whole person impairment threshold contained in section 58(2) of the Return to Work Act 2014 (SA) (the Act).
Mr Onody worked in employment capable of causing noise-induced hearing loss between 1970 and 2015. In 1996 he claimed lump sum compensation for non-economic loss pursuant to section 43 of the Workers Rehabilitation and Compensation Act 1986 (SA) (the Previous Act). He was assessed as having an impairment agreed to be the equivalent of a six per cent whole person impairment and was paid lump sum compensation of $8,310.60.
In 2001 Mr Onody commenced employment with Challenge Recruitment as a boilermaker. In June 2015 he claimed lump sum compensation for non-economic loss pursuant to section 58 of the Act. He was assessed as having a nine per cent whole person impairment. The Return to Work Corporation (the Corporation) by its authorised claims agent determined that, for the purpose of determining entitlement to lump sum compensation under section 58, Mr Onody’s pre-existing six per cent impairment was to be deducted from his nine per cent impairment and, because the differential was less than the five per cent threshold prescribed by subsection 58(2), he was not entitled to any lump sum compensation.
Mr Onody filed an application in the Tribunal for review of the Corporation’s decision. A presidential member stated the following question to the Full Bench:
For the purposes of s 58 of the Return to Work Act 2014, is the applicant’s whole person impairment on account of noise induced hearing loss:
(a)assessed at zero because it is less than the 5% whole person impairment threshold contained in s 58(2) of the RTW Act; or
(b)assessed at $10,843, being the compensation attributable to a 9% whole person impairment of $18,756 for a 2015 injury less the $8,310.60 awarded to the applicant in 1996.
The Full Bench answered the question in favour of the first alternative.[1] Mr Onody contends that the effect of paragraph 1.30 of the Impairment Assessment Guidelines (the Guidelines) made by the Minister is that, when a current work injury consists of an aggravation of a previous work injury in respect of which the worker was paid lump sum compensation for non-economic loss, the gross impairment (here nine per cent) is to be used for the purpose of both the calculation and the threshold. In the alternative, Mr Onody contends that subsection 188(2) has the effect that, in a case of noise-induced hearing loss, the gross impairment is to be so used.
[1] Onody v Return to Work SA [2018] SAET 45 at [28].
The reasons of the Full Bench
The Full Bench gave the following reasons for its conclusion:
While paragraphs 1.29 and 1.30 of the IAG deal with reductions under s 22(8)(g) and s 58(7) respectively, there is no clear or express guidance in either the IAG or the RTW Act about how to approach a case where a reduction may potentially arise under both s 22(8)(g) and s 58(7), as it does here.
Section 22(8)(g) is expressed to apply to previous injuries regardless of whether or not they are work injuries. In contrast, s 58(7) applies only to aggravations, accelerations, exacerbations, deteriorations or recurrences of prior work injuries.
Both s 22(8)(g) and s 58(7) make reference to the IAG. Section 58(7) does not apply if a reduction of the kind it deals with is incorporated into the provisions of the IAG. Section 22(8)(g) is subject to any provision to the contrary made by the IAG.
Paragraphs 1.21 to 1.29 of the IAG deal with circumstances where impairments are to be disregarded, deducted, assessed separately or not assessed. Having regard to paragraph 1.25, a deduction under s 22(8)(g) proceeds by first assessing the overall level of impairment, and then subtracting the earlier level of impairment as assessed from the overall impairment level. For s 22(8)(g) to apply, paragraph 1.25 of the IAG requires that there be an earlier impairment assessment for the relevant body part or function. It may be that an event like surgery or an amputation may produce an impairment rating under AMA5 which allows the pre-existing level of impairment to be determined.
In contrast to s 22(8)(g), s 58(7) requires that the work injury in question is an aggravation, acceleration, exacerbation, deterioration or recurrence of a prior work injury and that a lump sum payment under s 58 or a corresponding previous enactment has been made.
Section 58(8) of the RTW Act provides that any degree of impairment is to be assessed in accordance with Part 2 Division 5 of the RTW Act and the IAG. Section 22 is the only section in Part 2 Division 5 of the RTW Act.
Given s 58(8) directs that impairment assessments are to be made pursuant to s 22, and given s 58(2) sets a minimum impairment threshold that must be satisfied for a worker to receive lump sum compensation, we consider that s 22(8)(g) ought to be applied to Mr Onody’s claim.
In Preedy v Return to Work SA, a Full Bench of the Tribunal described s 22 as a “comprehensive instruction as to how assessments of permanent impairments are to be carried out.” The Full Bench went on to hold:
“It can be seen that s 58 is focused solely on the circumstances in which a lump sum payment for non-economic loss is payable and how such payment is quantified.”
Later in its reasons the Full Bench stated that: “In our view, it is clear that s 22 is the leading and dominant provision.” Thus s 22(8)(g) of the RTW Act must be applied to this case. It is clear that a portion of Mr Onody’s noise induced hearing loss is due to a previous injury. That portion is to be deducted from the overall impairment. Once the deduction is made it is apparent Mr Onody has 3% WPI due to noise induced hearing loss.
It follows that EML was right to have rejected Mr Onody’s claim because the level of his impairment has not met the statutory threshold.
Accordingly, we would answer the formal question posed as follows:
For the purposes of s 58 of the RTW Act Mr Onody’s WPI on account of noise induced hearing loss must be assessed at zero because it is less than the 5% WPI threshold contained in s 58(2) of the RTW Act.
The Full Bench did not clearly distinguish between the operation and interpretation of the statutory provisions on the one hand and the operation and interpretation of the Guidelines on the other hand. In the first and second paragraphs extracted above from its reasons, the Full Bench appears to have considered that the statutory provisions gave power to the Guidelines to determine whether a pre-existing impairment deduction should be made or a previous payment deduction should be made when both might otherwise potentially arise. However, the Full Bench appears not to have construed paragraph 1.30 of the Guidelines to determine whether it so operates.
The statutory provisions
Section 58 entitles a worker who suffers a work injury resulting in permanent impairment, subject to certain conditions, to payment of a lump sum for non-economic loss. It relevantly provides:
58—Lump sum payments—non‑economic loss
(1)Subject to this Act, if a worker suffers a work injury resulting in permanent impairment as assessed under Part 2 Division 5, the worker is entitled (in addition to any entitlement apart from this section) to compensation for non‑economic loss by way of a lump sum.
(2)An entitlement does not arise under this section if the worker's degree of whole person impairment from physical injury is less than 5%.
(3)An entitlement does not arise under this section in relation to a psychiatric injury or consequential mental harm.
(4)Subject to this section, the lump sum will be an amount that represents a portion of the prescribed sum calculated in accordance with the regulations.
(5)Regulations made for the purposes of subsection (4) must provide for compensation that at least satisfies the requirements of Schedule 8 taking into account the assessment of whole person impairment undertaken for the purposes of this Division.
…
(7) If—
(a) a work injury consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior work injury; and
(b) compensation by way of lump sum has been previously paid under this section, or a corresponding previous enactment,
there will be a reduction of the lump sum payable under this section in respect of the injury by the amount of the previous payment unless such a reduction is incorporated into the provisions of the Impairment Assessment Guidelines.
(8)For the purposes of this section, any degree of impairment will be assessed in accordance with Part 2 Division 5 (and the Impairment Assessment Guidelines).
…
Section 57 provides that the prescribed sum for the purpose of section 58 is $472,000 (or such greater sum as may be prescribed by regulation), indexed annually according to changes in the consumer price index.
Schedule 8 provides:
Schedule 8—Minimum amounts of compensation according to degree of impairment under regulations
Degree of whole person impairment Minimum compensation payable under regulations 5% - 9% (inclusive) $11 800 (indexed) 10% - 29% (inclusive) $20 768 (indexed) 30% - 49% (inclusive) $117 668 (indexed) 50% - 100% (inclusive)
$472 000 (indexed)
Section 58 refers to the Impairment Assessment Guidelines. Their making is empowered by section 22, which relevantly provides:
22—Assessment of permanent impairment
(1)This section sets out a scheme for assessing the degree of impairment (being whole person impairment) that applies to a work injury that results in permanent impairment.
(2) An assessment under this section—
(a) must be made in accordance with the Impairment Assessment Guidelines; and
(b) must be made by a medical practitioner who holds a current accreditation under this section.
(3)The Minister will publish guidelines (the Impairment Assessment Guidelines) for the purposes of the assessment of permanent impairment (being whole person impairment).
(4) The guidelines under subsection (3)—
(a) must be published in the Gazette; and
…
(c) must incorporate a methodology that arrives at an assessment of the degree of impairment of the whole person (whole person impairment); and
…
(7) An assessment of the degree of impairment resulting from an injury—
(a) must not be made until there is evidence that the injury has stabilised; and
(b) must, subject to subsection (8), be based on the worker's current impairment as at the date of assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury; and
(c) must be made by an accredited medical practitioner selected in accordance with the Impairment Assessment Guidelines.
(8) An assessment must take into account the following principles:
(a) if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed chronologically by date of injury;
(b) impairments from unrelated injuries or causes are to be disregarded in making an assessment;
(c) impairments from the same injury or cause are to be assessed together or combined to determine the degree of impairment of the worker (using any principle set out in the Impairment Assessment Guidelines);
(d) impairment resulting from physical injury is to be assessed separately from impairment resulting from psychiatric injury;
(e) in assessing impairment resulting from physical injury or psychiatric injury, no regard is to be had to impairment that results from consequential mental harm;
(f) in assessing the degree of permanent impairment resulting from physical injury, no regard is to be had to impairment that results from a psychiatric injury or consequential mental harm;
(g) any portion of an impairment that is due to a previous injury (whether or not a work injury or whether because of a pre‑existing condition) 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 Impairment Assessment Guidelines;
(h) assessments are to comply with any other requirements specified by the Impairment Assessment Guidelines.
…
It is critical to observe that each of subsection 58(7) and subsection 58(8)/section 22(8)(g) has a prima facie operation that is then qualified by a proviso by reference to the Guidelines.
Subsection 58(8) provides that the degree of impairment to be assessed for the purposes of section 58 is to be assessed in accordance with section 22 (which comprises Part 2 Division 5) and the Impairment Assessment Guidelines. Section 22(8)(g) provides that prima facie the degree of any pre-existing impairment due to a previous injury (whether a work injury or not) is to be deducted for the purposes of an assessment, ie that the impairment is to be assessed on a net basis rather than a gross basis (the pre-existing impairment deduction). This prima facie operation is subject to the proviso (the section 22(8)(g) proviso) that its prima facie operation is “subject to any provision to the contrary made by the Impairment Assessment Guidelines”.
Subsection 58(7) makes provision for the case where the current injury comprises an aggravation, acceleration, exacerbation, deterioration or recurrence (collectively an aggravation) of a prior work injury for which the worker received non-economic loss lump sum compensation (a prior compensated injury). It provides that prima facie the amount of the compensation (prior compensation) for the prior compensated injury is to be deducted from the compensation otherwise payable under section 58 (the prior payment deduction). This prima facie operation is subject to the proviso (the section 58(7) proviso) that its prima facie operation applies “unless such a reduction is incorporated into the provisions of the Impairment Assessment Guidelines”.
In a case in which a worker received prior compensation for a prior work injury, the prima facie operation of subsection 58(7) and subsection 58(8)/section 22(8)(g) would result in a double deduction, ie the previous impairment deduction pursuant to subsection 58(8) and section 22(8)(g) and the prior payment deduction pursuant to subsection 58(7), but for the existence of the two provisos.
The legislature explicitly recognised the potential for double deduction by incorporating the two provisos. It gave power to the Minister in making the Guidelines to override the prima facie effect of section 22(8)(g) by providing that the pre-existing impairment deduction is “subject to any provision to the contrary made by the Impairment Assessment Guidelines”. In a reciprocal manner, it provided in subsection 58(7) that the prior payment deduction is to be made “unless such a reduction is incorporated into the provisions of the Impairment Assessment Guidelines”. The purpose and effect of the two provisos is to enable the Guidelines to avoid a double deduction being made under both provisions, which would be manifestly unfair.
The legislation contemplated as the primary solution to double deduction the Minister overriding section 22(8)(g), such that the prior payment deduction operates under subsection 58(7) according to its prima facie terms and the pre‑existing impairment deduction does not operate by reason of the section 22(8)(g) proviso. This solution ensures that the worker receives the same total compensation as a result of both compensable injuries as if the worker suffered only a single compensable injury.
The legislation contemplated as an alternative solution that, if the Guidelines provide for or allow the pre-existing impairment deduction to operate (under subsection 58(8) and section 22(8)(g)) when the worker has received a prior payment, subsection 58(7) by the automatic operation of its proviso does not operate to deduct the previous payment. It is important to note that the exclusion of the prima facie operation of subsection 58(7) is achieved by subsection 58(7) itself: it does not require, or anticipate, the Guidelines overriding its prima facie operation because this is achieved by the proviso in the subsection itself. Under this solution, the pre-existing impairment deduction operates both for the purpose of quantifying the amount payable under the Regulations by reference to the degree of impairment and of comparison with the five per cent threshold prescribed by subsection 58(2). This solution equates a prior work injury to a previous non-work or non-compensable injury.
On the hearing of the appeal, the Corporation accepts that the Minister, in making the Guidelines, has power to override the pre-existing impairment deduction when both deductions would otherwise apply.
For the sake of completeness, I observe that section 56 entitles a worker who suffers a work injury resulting in permanent impairment, subject to certain conditions, to payment of a lump sum for loss of future earning capacity calculated by reference to the worker’s age and proportion of hours worked compared to full-time employment but without reference to rate of remuneration. Section 56 adopts a similar regime to section 58 by reference to degree of impairment, including subsection 56(6) which is the equivalent of subsection 58(7), subsection 56(7) which is the equivalent of subsection 58(8) and subsection 56(2) which is the equivalent of subsection 58(2).
Guideline 1.30
The Minister published the Guidelines in March 2015. The Guidelines are contained in 17 chapters. Chapter 1 is entitled “Introduction”. Paragraph 1.1 provides that the Guidelines “are published under subsection 22(3) of the Return to Work Act 2014”. This reflects the fact that it is subsection 22(3) of the Act which empowers the making of guidelines by the Minister.
Paragraph 1.30 of the Guidelines provides:
Deductions for prior payment under subsections 58(7) and 56(6)
1.30If a current work injury consists of an aggravation, acceleration, exacerbation, deterioration or recurrence of a previous work injury and the worker had an entitlement to, and was paid, compensation under section 58 of the Act (or a corresponding previous enactment) for that prior work injury, the assessor is to provide a % WPI of the combined effect of the current and prior work injuries. The worker will have the lump sum payable reduced by the dollar amount of the previous payment as required by subsection 58(7) of the Act.
This assessment will also be applied for the purpose of determining a worker’s entitlement to a lump sum for economic loss under section 56 of the Act.
Paragraph 1.30 is addressed, and confined, to the situation in which the current work injury is an aggravation of a previous work injury for which prior compensation was paid. It explicitly provides that, in that event, “the assessor is to provide a % WPI of the combined effect of the current and prior work injuries”. This is directly inconsistent with the prima facie operation of section 22(8)(g), which prima facie requires the impairment due to the previous injury to be deducted for the purposes of the assessment. This can only be the exercise by the Minister of the power conferred by the section 22(8)(g) proviso to override its prima facie operation. It cannot have been made in the exercise of any power conferred by section 58 because it is the proviso within section 22(8)(g) which confers power to override that provision and not section 58. Paragraph 1.30 then goes on to observe that consequentially by reason of the prima facie operation of subsection 58(7) the amount payable will be reduced by the dollar amount of the prior compensation. As observed above, this is achieved automatically by the operation of the subsection 58(7) proviso itself and not directly by the Guidelines. This is the primary solution contemplated by the legislation referred to at [17] above.
Once paragraph 1.30 overrides section 22(8)(g), there is to be no pre-existing impairment deduction effected by or pursuant to section 22(8)(g). This applies as much to the impairment assessment for the purposes of subsection 58(2) as it does for the purposes of subsection 58(7).
There is nothing in the text, context and evident purpose of paragraph 1.30 that evinces an intention that the assessor is to provide two different % WPIs, one being a gross % WPI to apply for the purpose of subsection 58(2) and the other a net % WPI to apply for the purpose of subsection 58(7). On the contrary, the text of paragraph 1.30 dictates that the assessor is to provide a single % WPI being “a % WPI of the combined effect of the current and prior work injuries”. This is supported by the evident purpose of paragraph 1.30: the power conferred by section 22(8)(g) and section 22 as a whole to make guidelines relates to the assessment of percentage impairment. Section 22 itself contemplates a single percentage impairment; not one for the purpose of subsection 58(7) and a different one for the purpose of subsection 58(2). Likewise, section 58 itself contemplates a single percentage impairment; not one for the purpose of subsection 58(7) and a different one for the purpose of subsection 58(2).
It is doubtful that the Minister in making the Guidelines would have power under section 22 to provide for different percentage impairments for the purposes of subsection 58(7) and subsection 58(2). However, even assuming power, there is no reason to construe paragraph 1.30 as having that effect.
The Corporation puts several arguments against this conclusion. First it contends that paragraph 1.30 does not purport to make “any provision to the contrary” for the purposes of section 22(8)(g). This contention must be rejected. Paragraph 1.30 explicitly makes provision directly to the contrary of section 22(8)(g) because it directs the assessor to provide an impairment percentage assessment of the combined effect of the current and prior work injuries.
Secondly the Corporation contends that the true intention of paragraph 1.30 is that, in a case in which subsection 58(7) is to be applied, an assessment under section 22 has already been completed with the result that compensation is payable under section 58 and the subsection 58(2) threshold must already have been exceeded. This contention must be rejected because paragraph 1.30 operates by negating the operation of section 22(8)(g) in the first place. For the purposes of lump sum compensation for non-economic loss (and indeed for economic loss), when the current injury is an aggravation of a prior work injury for which prior compensation was paid, it is not correct to say that the assessment under section 22 (including the pre-existing impairment deduction) has already been undertaken before paragraph 1.30 operates. It is that very assessment that is addressed by paragraph 1.30.
Thirdly the Corporation puts the same contention in a different way. It contends that paragraph 1.30 is addressed to the requirements for making an assessment in a case in which subsection 58(7) applies: it has no application when compensation is not payable under section 58 because of the effect of subsection 58(2) which is necessarily an anterior question. For the reasons given in the previous paragraph, there is no anterior operation of section 22(8)(g) before the operation of paragraph 1.30: paragraph 1.30 controls and negates the prima facie operation of section 22(8)(g) in the circumstances in which it applies.
Fourthly the Corporation points to the heading to paragraph 1.30 being “Deductions for prior payment under subsections 58(7) and 56(6)”. The Guidelines are a statutory instrument within the meaning of the Acts Interpretation Act 1915 (SA). Section 19(2)(a) as applied by section 14A provides that section headings of statutory instruments do not form part of the instrument. In any event, the heading to paragraph 1.30 merely identifies that it is addressing the circumstance in which prior compensation was made in respect of a prior work injury for the aggravation of which compensation is now claimed. Its operation is indeed confined to the situation in which prior compensation was paid within the meaning and for the purposes of subsection 58(7) (or subsection 56(6)). The heading does not indicate an intention that the impairment assessment to be undertaken under paragraph 1.30 is to be undertaken only for the purpose of calculation under subsections 58(7) and not subsection 58(2). On the contrary, the assessor to whom paragraph 1.30 is addressed has no interest in the use to which his or her assessment will be put; only in how he or she is to arrive at the percentage.
Fifthly the Corporation contends that the paragraphs of the Guidelines preceding paragraph 1.30 provide a context by reason of which paragraph 1.30 should be construed as not addressing the impairment assessment under section 22 which is instead addressed by paragraphs 1.21 to 1.29.
Chapter 1 of the Guidelines is entitled Introduction. Paragraphs 1.21 to 1.29 relevantly provide:
1.21The Act requires that injuries are assessed, not assessed or deducted, depending on specific requirements. For example:
• “impairments from unrelated injuries or causes are to be disregarded in making an assessment” (subsection 22(8)(b) of the Act).
• “any portion of an impairment that is due to a previous injury (whether or not a work injury or whether because of a pre-existing condition) that caused the worker to suffer an impairment before the relevant work injury is direct is to be deducted for the purposes of an assessment…” (subsection 22(8)(g) of the Act).
1.22A worker may have existing injuries to other parts of the body that are not required to be assessed. The requestor needs to identify such injuries and advise the assessor not to include these injuries in the assessment.
1.23 If the unrelated or previous injury is to the same part of the body as the work injury and is not related to the work injury, the requestor will ask the assessor to disregard the unrelated or previous injury, which means that the current permanent impairment attributable to both injuries is assessed but the degree of impairment attributable to the unrelated or previous injury is then deducted...
1.24 If the requestor asks for any injuries to a part of the body to be ‘deducted’, the assessor assesses the permanent impairment of the affected part of the body by applying the methodology in the Guidelines then deducts the permanent impairment % attributable to such injury. If there is no impairment from the previous unrelated injury or cause then there is nothing to deduct and this should be appropriately documented in the assessment report.
1.25 In some cases the requestor will ask that the assessor provide a whole person assessment for all specified injuries as well as a whole person impairment assessment specifically relating to the work injury only. If a relevant whole person impairment assessment for the worker has been completed previously and is to be included in the assessment, the requestor will provide the results of that previous assessment to the assessor and indicate that the assessment should be deducted. The assessor should then include that assessment in their report and deduct that assessment as instructed. This allows the case manager to determine the correct entitlement(s) for the worker.
1.26 The requestor will, if known, provide instruction to the assessor identifying:
• which injury impairment(s) should not be included in the assessment
• which injury impairment(s) should be combined to create a whole person impairment
• which injury impairment(s) should be assessed separately
• which injury impairment(s) should be deducted
• which injuries are not to be assessed, and
• any information from previous assessments of relevance to calculating the % WPI.
1.27 Where the requestor has indicated that impairments are to be assessed together, the Combined Values Chart, AMA5 (pp604–606), should be used to calculate the degree of whole person impairment of the worker...
1.28 When combining more than two impairments, the assessor must commence with the highest impairment and combine with the next highest and so on.
1.29 When a pre-existing injury needs to be considered, there should be objective evidence to support the assessment of impairment caused by that injury (e.g. clinical evidence, medical records and reports, the worker’s history, etc) and this must be carefully documented in the report. The impairment rating of the pre-existing injury is determined by applying the methodology in the Guidelines. The impairment from the pre-existing injury is then subtracted from the overall impairment rating. There cannot be a negative rating, that is, below 0%. If a worker suffers an impairment caused by a pre-existing unrelated injury which has already been assessed in accordance with the Guidelines or previous Guidelines, the assessor can deduct that impairment from the overall impairment which reflects the effect of both injuries.
NOTE: Requests for an assessment of permanent impairment and % WPI in respect of noise induced hearing loss will consider, in addition to section 22 of the Act, the requirements of subsections 188(2) and 188(3) of the Act. The requestor will consider these requirements and include relevant instructions in the request.
It may be accepted that these paragraphs of the Guidelines refer explicitly to various provisions within section 22 and paragraph 1.30 does not explicitly refer to section 22. However, it does not follow that paragraph 1.30 does not affect the operation of section 22. First the entirety of the Guidelines are addressed to the operation of section 22 and are empowered by section 22. Secondly paragraph 1.30 can only be empowered by section 22: it is not empowered by section 58. Thirdly paragraph 1.30 is directly inconsistent with the prima facie operation of section 22(8)(g) and necessarily modifies it pursuant to the power conferred by the section 22(8)(g) proviso.
It may be accepted that paragraphs 1.24 and 1.29 provide that the percentage impairment from the pre-existing injury is to be subtracted from the overall impairment rating. However, this does not disclose an intention by paragraph 1.30 not to provide otherwise. Paragraphs 1.24 and 1.29 are general provisions applying to assessments generally. Paragraph 1.30 is a very specific provision applying only to assessments where the current injury is an aggravation of a prior work injury for which prior compensation was paid. It is clear how paragraphs 1.24 and 1.29 on the one hand and paragraph 1.30 on the other hand are to be read together.
On its proper construction, paragraph 1.30 provides that, if a current work injury consists of an aggravation of a prior work injury for which the worker was paid prior compensation, the whole person assessment is to be undertaken on a gross basis for the purposes of the Act (including subsection 58(2)).
Conclusion
By reason of the operation of paragraph 1.30 of the Guidelines, the assessment of Mr Onody was required to be carried out without deduction of his pre-existing percentage impairment. This should have resulted in an assessment of nine per cent. That assessment applies for the purposes of section 58, including both subsection 58(2) and subsection 58(7).
It follows that the answer given by the Full Bench is incorrect. In the circumstances, there is no need to consider Mr Onody’s alternative argument based on section 188 of the Act.
The Corporation on appeal points to a misconception in the phrasing of the question referred to the Full Bench. The question refers to Mr Onody’s whole person impairment, which could only be answered in percentage terms, the competing answers being “three per cent” (according to the Corporation) and “nine per cent” (according to Mr Onody). The answers could not be expressed in dollar terms as were the alternatives posed in the question. Alternatively, the question should have enquired whether the compensation payable to Mr Onody pursuant to section 58 should be assessed at one of the two alternative dollar amounts stated in paragraph (a) or (b).
The Corporation submits that the Full Bench had power to substitute a correct formulation of the question and this Court on appeal has a similar power. Mr Onody does not contend that this Court lacks such power, nor does he take issue with the proposed reformulation of the question by the Corporation.
I am disposed to consider that this Court does have power to correct formulation of a question when it is manifestly incorrect. However, it is not necessary to decide the question because the preferable course is for this Court to substitute the correct answer to the question asked.
I would make the following orders:
1.Appeal allowed.
2.Order by the Full Bench set aside.
3.In lieu of the Full Bench’s answer, the following answer be substituted:
For the purposes of section 58 of the Return to Work Act 2014, the applicant’s whole person impairment on account of noise induced hearing loss should be assessed at nine percent. The compensation payable pursuant to section 58 should be assessed as the amount of compensation attributable to a 9% whole person impairment for a 2015 injury less the $8,310.60 awarded to the applicant in 1996.
I would hear the parties as to the costs of the appeal.
STANLEY J:
Introduction
This is an appeal from a decision of the Full Bench of the South Australian Employment Tribunal (the SAET).
This is a further case which highlights the difficulties in reconciling the provisions of the Return to Work Act 2014 (SA) (the RTW Act) relating to entitlements to compensation based on the assessment of the whole person impairment (WPI) of a worker. As is apparent from the three different approaches taken by the judges of this Court, it involves difficult questions of statutory construction.
The appellant suffers from noise induced hearing loss. On 19 June 1996, he made a claim for lump sum compensation pursuant to s 43 of the now repealed Workers Rehabilitation and Compensation Act 1986 (SA) (the 1986 Act) for that loss. He was assessed as having 10.8 per cent binaural loss of hearing, equating to a six per cent WPI. He received compensation of $8,310.60 pursuant to s 43 of the 1986 Act.
On 16 June 2015, the appellant submitted a further claim for lump sum compensation in accordance with s 58 of the RTW Act.
The appellant’s hearing loss was assessed for the purposes of that claim. He was assessed as having a nine per cent WPI due to noise induced hearing loss.
Had the appellant not previously made a claim and received compensation pursuant to s 43 of the 1986 Act, and had he made a claim in respect of his noise induced hearing loss for the first time on 16 June 2015, it is common ground he would have been entitled to lump sum compensation for non-economic loss in the sum of $18,756 under s 58 of the RTW Act. However, the assessment of the appellant’s entitlement to compensation was undertaken by the respondent on the basis that s 22(8)(g) of the RTW Act applied with the result that the appellant was found to have a WPI of three per cent. This was calculated by reducing the nine per cent WPI by six per cent for the 1996 hearing loss.
As a result, because the appellant’s WPI fell below the threshold of five percent WPI prescribed by s 58(2) of the RTW Act, the appellant had no further entitlement to lump sum compensation pursuant to s 58 of the RTW Act.
The Full Bench of the SAET upheld this approach as correct. The appellant challenges that conclusion. The issue is whether or not the RTW Act operates, in the case of a worker who has previously received lump sum compensation for a portion of the worker’s current impairment, so that his or her entitlement is doubly discounted for that prior injury. The issue presents constructional choices. The appeal requires consideration of the scheme of the RTW Act. It is convenient to commence with a consideration of the relevant provisions of the RTW Act.
Relevant provisions of the RTW Act
Section 22 provides:
22—Assessment of permanent impairment
(1) This section sets out a scheme for assessing the degree of impairment (being whole person impairment) that applies to a work injury that results in permanent impairment.
(2) An assessment under this section—
(a) must be made in accordance with the Impairment Assessment Guidelines; and
(b) must be made by a medical practitioner who holds a current accreditation under this section.
(3) The Minister will publish guidelines (the Impairment Assessment Guidelines) for the purposes of the assessment of permanent impairment (being whole person impairment).
(4) The guidelines under subsection (3)—
(a) must be published in the Gazette; and
(b) may adopt or incorporate the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time; and
(c) must incorporate a methodology that arrives at an assessment of the degree of impairment of the whole person (whole person impairment); and
(d) may specify procedures to be followed in connection with an assessment; and
(e) may have effect on a day specified by the Minister by notice in the Gazette; and
(f) may be amended or substituted by the Minister from time to time.
(5) The Minister must, before publishing or amending the Impairment Assessment Guidelines, consult with professional associations representing the class or classes of medical practitioners who hold accreditations under this section.
(6) An amendment or substitution in relation to the Impairment Assessment Guidelines under subsection (4)(f) will only apply in respect of an injury occurring on or after the date the amendment or substitution takes effect.
(7) An assessment of the degree of impairment resulting from an injury—
(a) must not be made until there is evidence that the injury has stabilised; and
(b) must, subject to subsection (8), be based on the worker's current impairment as at the date of assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury; and
(c) must be made by an accredited medical practitioner selected in accordance with the Impairment Assessment Guidelines.
(8) An assessment must take into account the following principles:
(a) if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed chronologically by date of injury;
(b) impairments from unrelated injuries or causes are to be disregarded in making an assessment;
(c) impairments from the same injury or cause are to be assessed together or combined to determine the degree of impairment of the worker (using any principle set out in the Impairment Assessment Guidelines);
(d) impairment resulting from physical injury is to be assessed separately from impairment resulting from psychiatric injury;
(e) in assessing impairment resulting from physical injury or psychiatric injury, no regard is to be had to impairment that results from consequential mental harm;
(f) in assessing the degree of permanent impairment resulting from physical injury, no regard is to be had to impairment that results from a psychiatric injury or consequential mental harm;
(g) any portion of an impairment that is due to a previous injury (whether or not a work injury or whether because of a pre-existing condition) 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 Impairment Assessment Guidelines;
(h) assessments are to comply with any other requirements specified by the Impairment Assessment Guidelines.
(9) A number determined under the Impairment Assessment Guidelines with respect to a value of a person's degree of whole person impairment may be rounded up or down according to any principle set out in the Impairment Assessment Guidelines.
(10) Subject to subsections (11) to (15) (inclusive), only 1 assessment may be made in respect of the degree of permanent impairment of a worker from 1 or more injuries (including consequential injuries) arising from the same trauma (and any injury that may subsequently develop or manifest itself or develop after the assessment of impairment is made will not be assessed).
(11) For the purposes of subsection (10), an assessment (or parts of an assessment) may be undertaken by more than 1 accredited medical practitioners and their assessments combined so as to create 1 assessment under that subsection.
(12) Subsection (10) does not affect the requirement under subsection (8)(d) for impairment resulting from physical injury to be assessed separately from impairment resulting from psychiatric injury.
(13) Subsection (10) operates subject to any assessment made under Part 8 (and the exercise of any adjudicative function by the Tribunal or a court).
(14) An interim decision under section 21 will not be taken to constitute an assessment for the purposes of subsection (10).
(15) Subsection (10) does not apply in any circumstances prescribed by the regulations.
(16) For the purposes of this section, the Minister must establish an accreditation scheme after consultation with the Advisory Committee.
(17) The accreditation scheme—
(a) will provide for the accreditation of medical practitioners who are determined, under the scheme, to be suitably qualified to undertake assessments for the purposes of this section; and
(b) will work on the basis that the Minister will issue the accreditations; and
(c) may provide for the suspension or cancellation of accreditation by the Minister on specified grounds; and
(d) may be amended or substituted by the Minister from time to time after consultation with the Advisory Committee.
(18) An accreditation will be issued by the Minister—
(a) for a period specified by the Minister; and
(b) on conditions determined by the Minister.
Section 56 provides:
56—Lump sum payments—economic loss
(1) Subject to this Act, if a worker, other than a seriously injured worker, suffers a work injury resulting in permanent impairment as assessed under Part 2 Division 5, the worker is entitled (in addition to any entitlement apart from this section) to compensation for loss of future earning capacity by way of a lump sum.
(2) An entitlement does not arise under this section if the worker's degree of whole person impairment from physical injury is less than 5%.
(3) An entitlement does not arise under this section in relation to—
(a) a psychiatric injury or consequential mental harm; or
(b) noise induced hearing loss.
(4) Subject to this section, the lump sum will be an amount determined as follows:
LS = PS × AF × HWF
where
LS is the lump sum
PS is the prescribed sum that applies in relation to the worker's whole person impairment
AF is the age factor applying in relation to the injured worker
HWF is the hours worked factor applying in relation to the injured worker.
(5) If a worker suffers 2 or more work injuries arising from the same trauma, the injuries may together be treated as 1 injury to the extent set out in the Impairment Assessment Guidelines (and assessed together using any combination or other principle set out in the Impairment Assessment Guidelines).
(6) If—
(a) a worker suffers a work injury that gives rise to an entitlement under this section; and
(b) the worker subsequently suffers—
(i) an aggravation, acceleration, exacerbation, deterioration or recurrence of the injury referred to in paragraph (a); or
(ii) a new work injury,
and the worker, as a result, has a second entitlement under this section,
there will be a reduction of the lump sum payable under this section in respect of the second entitlement by the amount of the payment for the earlier entitlement unless such a reduction is incorporated into the provisions of the Impairment Assessment Guidelines (and then this subsection will apply in relation to any third or subsequent entitlement in the same way in order to ensure that each lump sum previously paid is taken into account as new entitlements arise).
(7) For the purposes of this section, any degree of impairment will be assessed in accordance with Part 2 Division 5 (and the Impairment Assessment Guidelines).
(8) Only 1 claim may be made under this Division in respect of any impairment or impairments that result from 1 or more injuries (including consequential injuries) arising from the same trauma (and any injury that may subsequently manifest itself or develop after the assessment of impairment is made will not be compensable).
(9) Subsection (8) does not apply in any circumstances prescribed by the regulations.
(10) Compensation is not payable under this section after the death of the worker concerned.
(11) In the operation of this section, in no case can the lump sum exceed the prescribed sum adjusted by the age factor.
Section 58 provides:
58—Lump sum payments—non-economic loss
(1) Subject to this Act, if a worker suffers a work injury resulting in permanent impairment as assessed under Part 2 Division 5, the worker is entitled (in addition to any entitlement apart from this section) to compensation for non-economic loss by way of a lump sum.
(2) An entitlement does not arise under this section if the worker's degree of whole person impairment from physical injury is less than 5%.
(3) An entitlement does not arise under this section in relation to a psychiatric injury or consequential mental harm.
(4) Subject to this section, the lump sum will be an amount that represents a portion of the prescribed sum calculated in accordance with the regulations.
(5) Regulations made for the purposes of subsection (4) must provide for compensation that at least satisfies the requirements of Schedule 8 taking into account the assessment of whole person impairment undertaken for the purposes of this Division.
(6) If a worker suffers 2 or more work injuries arising from the same trauma—
(a) the injuries may together be treated as 1 injury to the extent set out in the Impairment Assessment Guidelines (and assessed together using any combination or other principle set out in the Impairment Assessment Guidelines); and
(b) the worker is not entitled to receive compensation by way of lump sum under subsection (4) in respect of those injuries in excess of the prescribed sum.
(7) If—
(a) a work injury consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior work injury; and
(b) compensation by way of lump sum has been previously paid under this section, or a corresponding previous enactment,
there will be a reduction of the lump sum payable under this section in respect of the injury by the amount of the previous payment unless such a reduction is incorporated into the provisions of the Impairment Assessment Guidelines.
(8) For the purposes of this section, any degree of impairment will be assessed in accordance with Part 2 Division 5 (and the Impairment Assessment Guidelines).
(9) Only 1 claim may be made under this Division in respect of any impairment or impairments that result from 1 or more injuries (including consequential injuries) arising from the same trauma (and any injury that may subsequently manifest itself or develop after the assessment of impairment is made will not be compensable).
(10) Subsection (9) does not apply in any circumstances prescribed by the regulations.
(11) Compensation is not payable under this section after the death of the worker concerned.
Section 188 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.
(2) Subject to this section, where a claim is made under this Act in respect of noise induced hearing loss by a worker (not being a person who has retired from employment on account of age or ill-health), the whole of the loss will be taken to have occurred immediately before notice of the injury was given and, subject to any proof to the contrary, to have arisen out of employment in which the worker was last exposed to noise capable of causing noise induced hearing loss.
(3) If a claim is made under this Act in respect of noise induced hearing loss by a person who has retired from employment on account of age or ill-health, the whole of the loss will be taken to have occurred immediately before the person retired and, subject to any proof to the contrary, to have arisen out of employment in which the person was last exposed to noise capable of causing noise induced hearing loss.
(4) If—
(a) a self-insured employer establishes in accordance with procedures laid down by the regulations that a worker was, at the time of undertaking employment with the employer, suffering from a particular injury; and
(b) the injury is of a prescribed class; and
(c) an aggravation, acceleration, exacerbation, deterioration or recurrence of the injury arises from employment by the employer referred to in paragraph (a); and
(d) the employer pays compensation under this Act in respect of the injury,
the employer may, by action in the Industrial Relations Court of South Australia, recover a fair contribution, determined by the Court, towards the amount of the compensation—
(e) from any self-insured employer from whose employment the injury established under paragraph (a) arose; or
(f) if there is no such self-insured employer—from the Corporation.
(5) If—
(a) an employer (not being a self-insured employer) establishes in accordance with procedures laid down by the regulations that a worker was, at the time of undertaking employment with the employer, suffering from a particular injury; and
(b) the injury is of a prescribed class; and
(c) an aggravation, acceleration, exacerbation, deterioration or recurrence of the injury arises from employment by the employer referred to in paragraph (a); and
(d) the Corporation pays compensation under this Act in respect of the injury, the Corporation may, by action in the Industrial Relations Court of South Australia, recover a fair contribution, determined by the Court, towards the amount of the compensation from any self-insured employer from whose employment the injury established under paragraph (a) arose.
Principles of statutory construction
The issues in this appeal involve questions of statutory construction. The relevant principles of construction are stated in Certain Lloyd’s Underwriters v Cross[2] in the joint judgment of French CJ and Hayne J as follows:[3]
[2] [2012] HCA 56, (2012) 248 CLR 378.
[3] [2012] HCA 56 at [23]-[26], (2012) 248 CLR 378 at 388-390.
It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole”, and “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative “intention” is to use a metaphor. Use of that metaphor must not mislead. “[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have” (emphasis added). And as the plurality went on to say in Project Blue Sky:
“Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”
To similar effect, the majority in Lacey v Attorney-General (Qld) said:
“Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.” (Footnote omitted.)
The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:
“Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case.”
(Emphasis added.)
And as the plurality said in Australian Education Union v Department of Education and Children’s Services:
“In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.” (Footnote omitted.)
[Footnotes omitted].
The scheme of the RTW Act
This analysis of the legislative history of s 188(2) of the RTW Act demonstrates that where a worker who suffers noise induced hearing loss and has been previously compensated for a portion of that loss brings a claim for lump sum compensation pursuant to s 58, the worker’s entitlement is to be determined by reference to the extent of the impairment the worker suffers immediately before notice of that injury was given. Section 188(2) and (3) are an exhaustive code in relation to the assessment and causation of noise induced hearing loss. For the purposes of determining the amount of compensation, these provisions quantify the extent of the impairment caused by noise induced hearing loss. Sections 188(2) and (3) crystallise the whole of the loss as a single indivisible loss occurring in a single instant.
Section 22 and s 188 are provisions concerned with the assessment of a worker’s impairment. Section 188 is the specific provision concerning noise induced hearing loss. Section 22 is the general provision. Section 188 prevails over s 22. It is an exception to the dominant purpose of s 22. To the extent that the Note to Guideline 1.29 is inconsistent with this construction, it is misconceived and can be disregarded.
Where the worker has previously claimed compensation for noise induced hearing loss, there is no scope for the deduction provided for in s 22(8)(g) because of the statutory fiction in s 188(2) that the whole of the impairment resulting from noise induced hearing loss occurred as a single blow immediately before notice was given.[30] Accordingly, there is no portion of the impairment that is due to a previous injury within the meaning of s 22(8)(g). Section 188(2) creates an exception to s 22(8)(g).
[30] Commissioner for Railways v Bain [1965] HCA 5, (1965) 112 CLR 246 per Barwick CJ at 256-257.
Section 188(2) is a provision applicable to the work of assessing a claim for lump sum compensation for non-economic loss. It provides for the calculation of the degree of impairment. However, it is not the provision in the RTW Act pursuant to which the assessment of compensation is undertaken. That is s 58.
It follows that in relation to a claim for noise induced hearing loss, whether the worker can satisfy the threshold test in s 58(2) is to be determined by reference to the entirety of the WPI from which the worker suffers at the time the worker gives notice of his claim. That distinguishes claims for compensation for noise induced hearing loss from all other claims based on impairment assessment under the RTW Act.
It also follows that pursuant to s 58(7), if that provision applies, from the lump sum payable there must be deducted the dollar amount of any previous compensation paid for noise induced hearing loss. In relation to a claim for noise induced hearing loss the operation of s 58(7) is vital to prevent double compensation. In assessing the compensation payable pursuant to s 58 for noise induced hearing loss the statutory fiction created by s 188(2) must be confined strictly to the calculation of the degree of impairment. Accordingly, where the work injury, as a matter of fact, consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of noise induced hearing loss and compensation by way of lump sum has been previously paid, there will be a reduction of the lump sum payable under s 58 by the amount of the previous payment. The entitlement to the lump sum will be assessed by reference to the total WPI the worker suffers as a result of his or her noise induced hearing loss. That reflects the approach mandated by Guideline 1.30.
The adoption of this construction results in the rejection of the respondent’s submission that where a worker has previously claimed lump sum compensation for noise induced hearing loss, by reason of the operation of s 22 the assessment of noise induced hearing loss in s 188(2) is confined to the incremental loss suffered during the period of the worker’s employment in which he or she was last exposed to noise capable of causing noise induced hearing loss. For the reasons set out above that submission is inconsistent with the provisions in s 188(4) and (5) providing a right of contribution.
Accordingly, in this case, the Full Bench erred in failing to have proper regard to the effect of s 188(2) of the RTW Act. The operation of s 188(2) means that the whole of the appellant’s WPI attributable to noise induced hearing loss is taken to have occurred immediately before notice of the injury was given by him on 16 June 2015. That WPI is nine per cent. However, as a matter of fact, for the purpose of applying s 58(7), the appellant’s noise induced hearing loss consists of the deterioration of his prior work injury of noise induced hearing loss. That conclusion requires a reduction of the lump sum payable in respect of the appellant’s WPI by the amount of the previous payment received by the worker for noise induced hearing loss, namely, $8,310.60. His entitlement to a lump sum in those circumstances is the lump sum payable for a nine per cent WPI for a 2015 injury less the amount previously paid pursuant to s 43 of the 1986 Act of $8,310.60.
Conclusion
The appeal must be allowed. I agree with the orders proposed by Blue J.
PARKER J: While both Blue J and Stanley J would uphold this appeal from a decision of the Full Bench of the South Australian Employment Tribunal and they agree as to the terms of the orders, their Honours have adopted different analyses. For the reasons that follow, I generally agree with the analysis of Blue J. However, I have also considered the operation of s 188(2) of the Return to Work Act 2014 (SA) (“the RTW Act”). I have reached the same conclusion as Stanley J in respect of the operation of s 188(2).
The relevant provisions of the RTW Act and the Impairment Assessment Guidelines (“the Guidelines”) published by the Minister under that Act appear in the judgments of the other members of the Court. Particulars of the appellant’s noise induced hearing loss also appear in those judgments. It is unnecessary for me to repeat that material.
Sections 22 and 58
Stanley J has referred at [56] to [59] to the analysis of this Court in Return to Work Corporation of South Australia v Preedy concerning the interaction between s 22 and s 58 of the RTW Act.[31] The essential points made by Stanley J are that s 22 is the leading and dominant provision in relation to the undertaking of assessments of whole person impairment (“WPI”) under the RTW Act. The principles relevant to such an assessment are largely prescribed by s 22(8). While s 22 deals with the assessment of impairment, s 58 is concerned with the assessment of compensation for non-economic loss.
[31] (2018) 131 SASR 86.
It is obviously a matter of considerable public importance that workers who have been compensated for previous injury should not be doubly compensated if that injury is aggravated, accelerated, exacerbated, deteriorates or reoccurs (collectively “reoccurs”). It is equally important that a worker should not be deprived of proper compensation because they have previously received some compensation for an injury that has reoccurred. The issue in this appeal is the operation of the provisions in the RTW Act and the Guidelines intended to deal with these two potential problems.
Section 22(8) of the RTW Act requires that the assessment of permanent impairment must take into account the principles set out in that provision. Section 22(8)(g) directs 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. However, that approach is subject to the very important proviso that its operation is “subject to any provision to the contrary made by the Impairment Assessment Guidelines”.
Section 58(7) deals with the situation where there has been a recurrence of a prior work injury and the worker has been previously paid lump sum compensation under s 58 or under a corresponding previous enactment. In those circumstances, s 58(7) directs that the amount of the previous payment will be deducted from the lump sum otherwise payable under s 58. However, once again, there is an important proviso set out in the final words of s 58(7), that being “unless such a reduction is incorporated into the provisions of the Impairment Assessment Guidelines.”
As both Blue J and Stanley J have noted, there was an obvious potential for s 22(8)(g) and s 58(7) to result in a double deduction. That could occur because the WPI is reduced on account of the pre-existing impairment while a deduction is also made on account of the lump sum previously paid. The Parliament clearly foresaw that possibility and left the matter to be resolved in accordance with the Guidelines.
Paragraphs 1.18 to 1.29 of the Guidelines appear under the headings “Multiple impairments” and “Previous injuries, pre-existing conditions and unrelated injuries”. Those paragraphs of the Guidelines provide guidance and instructions to the person requesting an assessment and to the assessor. While a reference is made in the second dot point of paragraph 1.21 to the text of s 22(8)(g), there is nothing in paragraphs 1.18 to 1.29 that can properly be regarded as “any provision to the contrary” of the statutory direction found in s 22(8)(g). As Stanley J has suggested, paragraphs 1.18 to 1.29 provisions of the Guidelines are merely facultative and do not express a contrary direction.
The central point of difference between the judgments of Blue J and Stanley J concerns the operation of paragraph 1.30 of the Guidelines. Paragraph 1.30 appears under the heading “Deductions for prior payment under subsections 58(7) and 56(6) of the Act”. The significance of this heading is integral to the difference of opinion between Blue J and Stanley J.
I agree with the analysis by Blue J at [21] to [35]. Paragraph 1.30 constitutes “any provision to the contrary” in terms of the proviso to s 22(8)(g). In other words, paragraph 1.30 is a legally binding direction by the Minister to disregard the direction in s 22(8)(g) that any portion of an impairment that is due to a previous injury is to be deducted for the purposes of the WPI assessment. The important point is that the direction under paragraph 1.30 only operates where the worker had an entitlement to, and was paid, compensation under s 58 (or a corresponding previous enactment) for that prior work injury. In those circumstances, the assessor is directed by paragraph 1.30 “to provide a % WPI of the combined effect of the current and prior work injuries.” In that event, the lump sum payable to the worker will be reduced by the amount of the previous payment in accordance with s 58(7).
I agree with Blue J that there is nothing in s 58(7) that authorised the Minister to issue a Guideline concerning the assessment of WPI. That issue is dealt with by s 22(8). More particularly, s 22(8)(g) specifically authorises the issue of a Guideline that overrides the scheme of assessment otherwise provided for by s 22(8)(g). In contrast, s 58(7) only authorises the Minister to promulgate a Guideline relating to the reduction of lump sums otherwise payable under s 58. It does not authorise a different approach to the assessment of WPI.
In that light, the sole effect of paragraph 1.30 is to modify the operation of s 22(8)(g) by setting aside the ordinary requirement that an impairment due to a previous injury is to be deducted for the purposes of the assessment of WPI. Paragraph 1.30 refers to the effect of s 58(7) but does not in any way modify the requirement that the lump sum previously paid shall be deducted from the amount payable under s 58 pursuant to the new assessment of WPI.
For these reasons, I reject the contention by the appellant that paragraph 1.30 is contrary to s 22(8)(g). As I have said, (and subject to what follows about the effect of s 188(2)) paragraph 1.30 removes the ordinary requirement that a prior impairment not be taken into account. I also reject the contention by the respondent that paragraph 1.30 is not concerned with the application of s 22(8)(g) but rather with the operation of s 58(7).
The effect of the construction adopted by Blue J, with which I agree, is that the assessment of WPI conducted in accordance with s 22(8)(g) when modified by the direction in paragraph 1.30 is that the percentage of WPI resulting from the prior work injury will not be deducted for the purposes of s 58(2). In other words, the WPI percentage arising from the combined effect of the current and prior work injuries will be taken into account when determining whether the worker’s degree of WPI meets the threshold of five percent. The Full Bench erred in not finding that the WPI of the appellant exceeded the 5% threshold.
For completeness, I also record my view that the heading to paragraph 1.30 is simply intended to draw attention to the fact that a lump sum deduction will be made where there has been a prior payment of compensation under s 58 and corresponding previous enactments. Leaving aside for the moment the question of whether the heading forms part of the Guidelines, for the reasons already given, I consider that the text of paragraph 1.30 operates to displace the ordinary rule under s 22(8)(g), with the result that the assessment is to combine the effect of current and prior work injuries. The reference in the heading to s 58(7) simply notes the operation of that provision and does not purport to modify its operation.
Blue J and Stanley J have come to different conclusions as to whether the heading to paragraph 1.30 forms part of the Guidelines. Blue J has adopted the view that the heading is the heading to a section and therefore s 19(2)(a) of the Acts Interpretation Act 1915 (SA) (“the AIA”) applies so that it does not form part of the statutory instrument. Stanley J has come to the contrary conclusion on the basis that the heading is a chapter heading in terms of s 19(1)(b) of the AIA and thus forms part of the instrument.
In my view, the difference in interpretation between Blue and Stanley JJ has arisen because the author of the Guidelines has not structured the Guidelines in a manner similar to traditional drafting of an Act or Regulations. Instead, the Guidelines are divided into a series of chapters. Chapter 1 comprises the introduction and chapter 17 the assessor selection process, while the remaining chapters deal with the assessment of impairments affecting the various elements of the human anatomy, bodily systems and senses. Thus, for example, there are chapters dealing with the spine, the nervous system, hearing, skin and so forth. While headings appear regularly in each chapter, there does not appear to be any hierarchy of headings. For that reason, it is by no means clear whether the heading to paragraph 1.30 is the heading to a part, a division or a section. However, I consider the better view to be that the heading to paragraph 1.30 is a section heading. It is certainly not a chapter heading. I doubt whether it is a heading to a part or division. On that basis, although it is not necessary to decide the point, I incline towards to the view expressed by Blue J about the application of the AIA. In any event, for the reasons I have given, I think it clear that paragraph 1.30 operates in the manner indicated by Blue J.
Section 188 – Noise induced hearing loss
The preceding analysis refers generally to the assessment of WPI where a worker has been compensated for a prior injury, but does not take into account the special provisions of s 188(2) that apply where a worker has suffered a noise induced hearing loss. I consider it necessary to address that issue because the appellant is seeking compensation for a noise induced hearing loss.
I agree with the analysis by Stanley J concerning the operation of s 188(2). Briefly stated, I consider that where a worker has suffered a noise induced hearing loss, s 188 operates as a specific provision covering that impairment and thereby displaces the general provisions in s 22 that ordinarily govern assessment of impairment.
As Stanley J has observed, where a worker has previously been compensated for noise induced hearing loss there is no scope for the approach otherwise mandated by s 22(8)(g), because s 188(2) deems the whole of the impairment resulting from noise induced hearing loss to have occurred immediately prior to the giving of notice. In those circumstances, there is no portion of the impairment that is due to a previous injury for the purposes of s 22(8)(g). Section 188(2) creates its own particular scheme for the calculation of the degree of impairment. However, s 188(2) does not displace the ordinary rules for assessment of compensation under s 58.
I also agree with Stanley J that, because of the operation of s 188(2), whether a worker can meet the threshold requirement in s 58(2) must be determined by reference to the totality of the WPI suffered by the worker immediately before he or she gave notice. In the present case, the effect of s 188(2) is that the appellant was suffering a WPI of nine percent immediately prior to giving notice of his present injury. Section 58(7) then operates to require that the compensation previously payable to the appellant on account of his noise induced hearing loss must be deducted from the amount that would otherwise be payable in accordance with the WPI determined under s 188(2).
Conclusion
I would allow the appeal and make orders in the terms proposed by Blue J.
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