Return to Work Corporation of SA v Watkins

[2017] SASC 47

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Permission to Appeal in Private)

RETURN TO WORK CORPORATION OF SA v WATKINS

[2017] SASC 47

Judgment of The Honourable Justice Vanstone

31 March 2017

WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - OTHER MATTERS

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT

Application for the Corporation to appeal against the decision of the Full Bench of The South Australian Employment Tribunal - Application dealt with in private question of construction of the Return to Work Act 2014 (SA) and the transitional provisions.

Application granted.

Workers Rehabilitation and Compensation Act 1986 (SA) (Repealed); Return to Work Act 2014 (SA) Sch 9, referred to.

RETURN TO WORK CORPORATION OF SA v WATKINS
[2017] SASC 47

Civil: Permission to Appeal in Private

VANSTONE J.

1. Return to Work Corporation of South Australia seeks permission to appeal against a decision of the Full Bench of the South Australian Employment Tribunal.  The Corporation has argued that if permission is granted it will pay the respondent’s costs of the appeal.

2. The matter concerns the “serious injury” suffered by Ms Carmen Watkins, while working on Thursday 4 December 2014, causing her to break her arm. Ms Watkins had surgery on Friday 5 December 2014 and returned to work on Monday 8 December 2014, on modified duties. This claim was made under the repealed Workers Rehabilitation and Compensation Act 1986 (SA). On 11 February 2015 it was determined by Return To Work SA that Ms Watkins was no longer entitled to receive weekly payments because she had returned to work. The parties agreed that Ms Watkins “had no actual entitlement to income maintenance” when the Return to Work Act 2014 (SA) (“the Act”) came into effect.

3. During post-operative reviews with her surgeon, Ms Watkins “raised her preference”, due to discomfort, to have removed the plate and screws in her arm which were inserted during the surgery on 5 December 2014. Return to Work SA’s agent provided approval for the surgery “in late August 2015 and on 31 August 2015 the surgery was performed.” Ms Watkins returned to work on “full time modified duties” on 21 September 2015. Return to Work SA and the first instance judge, Deputy President Gilchrist, rejected payment for the period of incapacity from 31 August 2015 to 21 September 2015. However this was overturned on appeal to the Full Bench. Return to Work SA seeks permission to appeal against that decision.

4. At first instance Gilchrist DP refused the worker’s claim, stating that because her entitlement to weekly payments had been lawfully discontinued, cl 37(6) applied so as to deprive her of weekly payments arising from injury resulting from the surgery. He referred to s 7(6) of the Act and to cl 37(6) of the transitional provisions. Gilchrist DP said at [33] that s 7(6) of the Act means that:

   …surgery is no longer regarded as a “new injury”. Under the RTW Act, if there are rights to compensation flowing from surgery, they arise because of the original injury. This creates an insurmountable obstacle for Ms Watkins. As a result of her circumstances, namely the lawful discontinuance of her weekly payments pursuant to s 36 if the WR&C Act prior to the designated day, means that by force of cl 37 of sch 9 of the transitional provisions of the RTW Act, as construed in Pennington, she has no ongoing entitlement to weekly payments in respect of that injury.

5. The Full Bench reasoned that under s 7(6) the injury attributable to surgery was taken to constitute part of the original injury. The plurality comprising Hannon DPJ and Farrell DPJ, then referred to cl 29(3)(a) of the transitional provisions. Relying on the combination of s 7(6) and cl 29(3)(a) the plurality said at [40] that the original injury is deemed to comprise both the original trauma and the later trauma. That being the case, the original trauma could not answer the description of “an existing injury” in cl 29(1)(a); rather “the composite injury” had to be taken as a new injury, under cl 29(1)(b). Thus, the Act must be taken to apply with respect to the new injury as from the date of the original injury, 4 December 2014. Clause 37 had no application.

6. Deputy President Calligeros, agreeing in the result, took the view that, under cl 29(2) of the transitional provisions, the injury caused by the surgery was to be taken to be a new injury and was therefore compensable.

7. The appellant wishes to argue that the conclusion that the applicant’s remedial surgery was a new injury is contrary to s 7(6) and constitutes an error of law.

8. In view of the importance of these questions and the difficulties thrown up by the legislation, I consider a grant of permission to appeal is warranted.