Onody v Return to Work SA

[2018] SASC 60

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Permission to Appeal in Private)

ONODY v RETURN TO WORK SA

[2018] SASC 60

Judgment of The Honourable Chief Justice Kourakis

18 May 2018

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

WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION

Application for permission to appeal against a decision of the Full Bench of the South Australian Employment Tribunal.

Held, granting permission to appeal:

1.  The appeal raises an arguable question of law.

Workers Rehabilitation and Compensation Act 1986 (SA) (Repealed) s 43; Return to Work Act 2014 (SA) ss 22, 58(2), 58(7), 58(8), referred to.

ONODY v RETURN TO WORK SA
[2018] SASC 60

Civil

1. KOURAKIS CJ:   This is an application for permission to appeal against a decision of the Full Bench of the South Australian Employment Court (the Full Bench). 

2. In 1996 the applicant, Mr Onody, successfully claimed Workers Compensation benefits under the Workers Rehabilitation and Compensation Act 1986 (WRCA) in respect of noise induced hearing loss. The appellant was awarded compensation assessed on a 10.8 per cent binaural hearing loss pursuant to s 43 of the WRCA.

3. The appellant continued employment in which he was exposed to further noise.  On 11 June 2015 he made a further claim for compensation in respect of hearing loss against his then employer.  An ear, nose and throat surgeon assessed his hearing loss against the then applicable impairment guidelines.  He reported that Mr Onody’s hearing loss had deteriorated from a 6 per cent whole person impairment in 1996 to a 9 per cent whole person impairment in 2015.

4. Section 58(8) of the Return to Work Act 2014 (the RTW Act) provides that a degree of impairment is to be assessed in accordance with Part 2 Division 5 of the RTW Act and the Impairment Assessment Guide (IAG). Division 5 comprises only s 22.

5. Section 22(8)(g) provides that:

   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.

6. The purpose of s 22(8)(g) of the RTW Act is to avoid either double compensation or the compensation of a non-work caused impairment.

7. Section 58(7) of the RTW Act is another provision calculated to avoid double compensation. It provides that if a work injury is an aggravation, acceleration, exacerbation, deterioration or recurrence of a prior work injury which has been compensated by a lump sum there must be a reduction of the lump sum payable for the subsequent injury by the amount of the previous payment unless such a reduction is incorporated into the provisions of the IAG. It can be seen then that in the case of a work injury, which is an aggravation of a prior work injury that has been compensated by way of lump sum, the degree of impairment may be reduced by reason of s 22(8)(g) of the RTW Act in its application to any pre-existing condition, whether work caused or not, and that there must also be a monetary deduction from the award pursuant to s 58(7) of the RTW Act. The result is that compensation payable for the subsequent impairment, on the face of those provisions, is doubly discounted for the prior impairment.

8. Section 58(2) of the RTW Act provides that an entitlement to lump sum compensation under that section does not arise if the worker’s degree of whole person impairment from physical injury is less than 5 per cent. The Full Bench applying s 22(8)(g) of the RTW Act held that Mr Onody was not entitled to any compensation because his impairment was only 3 per cent, being the difference between his current impairment of 9 per cent and pre-existing impairment of 6 per cent.

9. The applicant contends that the apparent denial of meaningful compensation for a subsequent impairment, which is an exacerbation of a pre-existing work injury, is avoided by paragraph [1.30] of the IAG which provides as follows:

   If 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 s 58 of the Act (or a corresponding previous enactment) for that work injury, the assessor is to provide a % WPI of the combined effect of the current and prior work injury. The worker will have the lump sum payable reduced by the dollar amount of the previous payment as required by sub-section 58(7) of the Act.

10. Paragraph [1.30] appears calculated to remedy the problem of doubling up on the deduction for a pre-existing impairment which is the subject of a monetary deduction pursuant to s 58(7) of the RTW Act. It is arguable that paragraph [1.30] also allows Mr Onody to be compensated for his further hearing loss notwithstanding s 58(2) of the RTW.

11. The applicant’s contention raises an arguable question of law.  Permission to appeal is granted.