Return to Work Corporation of South Australia v Mitchell - [2019] SASCFC 34

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v MITCHELL
[2019] SASCFC 34
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Hinton)
11 April 2019
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE
WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION
Appeal from a decision of the Full Bench of the South Australian Employment Tribunal (SAET).
The worker suffered a compensable lower back injury in the course of employment. He successfully claimed lump sum compensation for non-economic loss pursuant to s 43 of the repealed Workers Rehabilitation and Compensation Act 1986 (SA) (the repealed Act).
The worker underwent a lumbar spinal fusion surgery. He made a claim for lump sum compensation pursuant to s 43 for several subsequent impairments caused by his ingestion of one or more medications prescribed to him for pain control following the surgery. The Judge accepted the worker’s claim, holding that for the purpose of determining the level of Whole Person Impairment (WPI), the WPI assessments for these impairments were all to be combined as well as combining them with the WPI assessment previously made in respect of the worker’s back injury and scarring. That was because each of the impairments and the lower back injury itself were all “compensable injuries arising from the same trauma” within the meaning of s 43(6) of the repealed Act.
On appeal, the Full Bench of the SAET upheld the Judge’s decision.
On appeal to this Court, at issue is whether the respondent suffered a single compensable injury or two or more compensable injuries within the meaning of s 43(6). If the answer is the former, then s 43(6) does not apply. If the answer is the latter, there is the further question of whether the respondent’s compensable injuries arose from the same trauma.
Held per Stanley J (Kourakis CJ and Hinton J agreeing), allowing the appeal:
1. The impairments to the respondent’s upper and lower digestive systems, his urinary and reproductive system and mastication and deglutition are separate physiological changes from the impairment of his lumbar spine, constituting a distinct, subsequent compensable injury.
2. The impairments that arose as a complication of the respondent’s ingestion of opioid medication to relieve the symptoms of his lumbar spine following surgery arose not from the injury to his lumbar spine, but from his ingestion of opioid medication. As that event occurred subsequent to the events which resulted in the injury to his lumbar spine, it was not the case that those injuries arose from the same trauma as the lumbar spine injury. Accordingly, the condition for combination prescribed by s 43(6) is not made out.
3. Appeal allowed, the order awarding compensation to the respondent pursuant to s 43 of the repealed Act in the sum of $359,190 is set aside and the matter is remitted to the SAET for appropriate factual findings to be made and for an assessment of compensation pursuant to s 43 to be decided in accordance with the Court’s reasons.
Workers Rehabilitation and Compensation Act 1986 (SA) s 3(1), s 3(6), s 30, s 43, s 43A, referred to.
Marrone v Employers Mutual Ltd (2013) 116 SASR 501, applied.
Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; Martin v Return to Work Corporation of South Australia [2016] SAET 95; Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; Mitchell v Return to Work SA [2017] SAET 16; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Return to Work Corporation of South Australia v Mitchell [2017] SAET 81; Return to Work Corporation of South Australia v Preedy (2018) 131 SASR 86, discussed.
Beneficial Finance v Price Waterhouse Corporation Ltd (1996) 68 SASR 19; Lindeman Ltd v Colvin (1946) 74 CLR 313; Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; Migge v Wormald Bros Industries Ltd (1972) 2 NSWLR 29; Migge v Wormald Bros. Industries Ltd (1973) 47 ALJR 236; Pooraka Holdings Pty Ltd v Participation Nominees Ltd (1989) 52 SASR 148, considered.

RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v MITCHELL
[2019] SASCFC 34
Full Court: Kourakis CJ, Stanley and Hinton JJ

KOURAKIS CJ: I agree that the appeal should be allowed for the reasons given by Stanley J. I would join in the orders he proposes
STANLEY J:
Introduction
This is an appeal from the Full Bench of the South Australian Employment Tribunal (the Employment Tribunal). The appeal raises a question of construction of the repealed Workers Rehabilitation and Compensation Act 1986 (SA) (the repealed Act). At issue is the approach to assessing lump sum compensation for non-economic loss pursuant to s 43 of the repealed Act. The appeal concerns the operation of s 43(6). It provided for the assessment of two or more compensable injuries arising from the same trauma as one injury.
The issue is the approach to the combination of whole person impairment (WPI) assessments for the purposes of calculating lump sum compensation. In this case the question is whether the consequences of taking medication for the symptoms of a compensable back injury is a single compensable injury or more than one compensable injury.
In order to understand the question of statutory construction which arises, it is necessary to set out the factual background to the matter and its litigation history.
The facts
In late 2008 and early 2009 the respondent worker suffered a compensable lower back injury. In January 2011 the worker underwent surgery by way of lumbar spinal fusion for his compensable lower back injury. The back injury was assessed in July 2013 for the purposes of the repealed Act as a WPI of 26 per cent. This consisted of a 25 per cent loss of function attributable to the back injury plus one per cent loss of function for scarring. There is no complaint on appeal in relation to that assessment.
The worker made claims for lump sum compensation pursuant to s 43 in respect of several subsequent impairments, namely, xerostomia (dry mouth), loss of mastication and deglutition, impairment of the upper and lower digestive system, impairment of the genito-urinary system, erectile dysfunction and bladder dysfunction. These impairments were the result of the worker’s ingestion of one or more of the “extraordinary array of powerful medications, mainly of opioids” prescribed to him for pain control following the surgery in January 2011.
Decisions of the Employment Tribunal
At first instance, Judge Calligeros found that each of these impairments was caused by the consumption by the worker of medication that was prescribed following the lumbar spinal fusion surgery and “from the over-use of medication”. The judge assessed the entitlements arising as follows:
Upper digestive: 10 per cent;
Lower digestive: 14 per cent;
Urinary and reproductive system (erectile dysfunction): 20 per cent;
Urinary and reproductive system (bladder disease): 28 per cent;
Mastication and deglutition: 10 per cent;
The judge held that, for the purpose of determining the level of WPI, the WPI assessments for these impairments were all to be combined as well as combining them with the WPI assessment of 26 per cent previously made in respect of the worker’s back injury and scarring. That was because each of the impairments and the lower back injury itself were all “compensable injuries arising from the same trauma” within the meaning of s 43(6) of the repealed Act.
The judge considered that the he was constrained by the decision of the Full Bench of the Employment Tribunal in Martin v Return to Work SA[1] to hold that the impairments were “injuries arising from the same trauma” which must be combined for the purposes of WPI assessment. The judge said that, had he not been bound by the decision in Martin, he would have regarded the approach of the Full Court in Marrone v Employers Mutual Ltd[2] as dictating a different conclusion.
[1] [2016] SAET 95.
[2] [2013] SASCFC 67, (2013) 116 SASR 501.
The result of combining the various WPI assessments into a single WPI for the purposes of calculating compensation pursuant to s 43 was that the worker’s total WPI was 70 per cent.
On the basis of the judge’s reliance upon the reasoning in Martin, it was unnecessary to make any findings as to which particular medication or combination of medications, or which instance of taking medication, gave rise to a trauma which resulted in each impairment, or when these events occurred. The judge expressly declined to proceed in that way.
The Full Bench, in dismissing the appeal from Judge Calligeros, followed its earlier decision in Martin. The Full Bench held that all of the impairments arose from “the same trauma” as the initial lower back injury. In their joint judgment, McCusker J and Deputy President Lieschke held that the authorities of Lindeman Ltd v Colvin,[3] Mahony v J Kruschich (Demolitions) Pty Ltd[4] and the dissenting judgment of Mason JA (as he then was) in Migge v Wormald Bros. Industries Ltd[5] established the proposition that surgery and medical treatment are not to be treated as produced by separate traumas. They held that compensable injury includes the instigating event and the complication. As a result, treatment of the complication completes the concept of injury.[6] Their Honours said:[7]
By s 43 a worker who suffers a compensable injury resulting in permanent impairment is entitled to compensation for non‑economic loss by way of a lump sum. A compensable injury may result in more than one impairment and that is assumed by the Act. But so too separate compensable injuries may arise from the same trauma. That is the correct description of what has happened in this worker’s case. And for the reasons explained, surgery and medical treatment are not to be treated as produced by separate traumas. In this case and particularly in regard to the opiates, the compensable injuries arose from the one trauma.
In Martin the Full Tribunal held:
“In our view, relevant authorities and common sense lead to the conclusion that provided the medical treatment is made necessary because of the original injury, short of gross negligence that might break the chain of causation, any adverse consequences of that treatment should be regarded as forming part of the original compensable injury.” [Authorities omitted.]
Once this stage of analysis is reached, namely that the concept of compensable injuries arising from the same trauma includes any medical treatment or surgery attendant upon the injury then Marrone allows the injuries to be treated as one injury. Only in the case of fresh instigation, as was the case in Marrone, with the development of injury and impairment in the opposite arm due to overuse after return to work would the injuries be treated as arising from separate traumas. These aspects of the law have already been closely considered on a number of occasions. This result is entirely consistent with the result in Preedy.
[Citations omitted].
[3] (1946) 74 CLR 313.
[4] (1985) 156 CLR 522.
[5] (1972) 2 NSWLR 29. On appeal the High Court in Migge v Wormald Bros. Industries Ltd (1973) 47 ALJR 236 approved Mason JA’s dissent in the New South Wales Court of Appeal.
[6] [2017] SAET 81 at [17].
[7] [2017] SAET 81 at [19]-[21].
In a separate judgment, Judge Dolphin also dismissed the appeal. He reasoned that the authorities and common sense required that the back injury and the consequential effects of that injury constituted one compensable injury such that any adverse consequences arising from the treatment of the compensable injury by medication are to be seen as part of the effect of that injury.
That conclusion had the effect, pursuant to s 43(6), that the back disabilities and the adverse reactions were to be treated as one disability for the purposes of determining the whole person impairment of the worker. The greater the WPI the greater the entitlement to lump sum compensation.
Relevant statutory provisions
Section 43 of the repealed Act provided:
43—Lump sum compensation
(1) Subject to this Act, if a worker suffers a compensable injury resulting in permanent impairment as assessed in accordance with section 43A, 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) 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.
(3) Regulations made for the purposes of subsection (2) must provide for compensation that at least satisfies the requirements of Schedule 3 taking into account the assessment of whole of person impairment under this Division.
(4) An entitlement does not arise under this section if the worker's degree of permanent impairment is less than 5%.
(5) An entitlement does not arise under this section in relation to a psychiatric impairment.
(6) If a worker suffers 2 or more compensable injuries arising from the same trauma—
(a)     the injuries may together be treated as 1 injury to the extent set out in the WorkCover Guidelines (and assessed together using any combination or other principle set out in the WorkCover Guidelines); and
(b)     the worker is not entitled to receive compensation by way of lump sum under subsection (2) in respect of those injuries in excess of the prescribed sum.
(7) If—
(a)     a compensable injury consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior compensable 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 WorkCover Guidelines.
(8) For the purposes of this section, the prescribed sum is—
(a)     unless a regulation has been made under paragraph (b)—$400 000 (indexed); or
(b)     a greater amount prescribed by regulation for the purposes of this definition.
(9) In connection with the operation of subsection (8)—
(a)     the amount to be applied with respect to a particular injury is the amount applying under that subsection at the time of the occurrence of that injury; and
(b)     an amount prescribed by regulation under paragraph (b) of that subsection must be indexed so as to provide annual adjustments according to changes in the Consumer Price Index.
(10) For the purposes of this section, any degree of impairment will be assessed in accordance with section 43A (and the WorkCover Guidelines).
(11) Compensation is not payable under this section after the death of the worker concerned.
(12) In this section—
WorkCover Guidelines means the guidelines published under section 43A.
“Trauma” was defined in s 3(1) of the repealed Act to mean an event, or series of events, out of which a compensable injury arises. “Injury” was defined as follows:
injury, in relation to a worker, means—
(a) any physical or mental injury including—
(i)      loss, deterioration or impairment of a limb, organ or part of the body, or of a physical, mental or sensory faculty; or
(ii)     a disease; or
(iii)     disfigurement; or
(b) where the context admits—the death of the worker, and includes a secondary injury;
“Compensable injury” was defined to mean an injury that is compensable by virtue of section 30.
Section 30 provided:
30—Compensability of injuries
(1) Subject to this Act, an injury is compensable if it arises from employment.
(2)     Subject to this section, an injury arises from employment if—
(a)     in the case of an injury that is not a secondary injury or a disease—it arises out of or in the course of employment; or (b) in the case of an injury that is a secondary injury or a disease—
(i) the injury arises out of employment; or
(ii) the injury arises in the course of employment and the employment contributed to the injury.
(3) A worker's employment includes—
(a)     attendance at the worker's place of employment on a working day but before the day's work begins in order to prepare, or be ready, for work; and
(b)     attendance at the worker's place of employment during an authorised break from work; and
(c)     attendance at the worker's place of employment but after work ends for the day while the worker is preparing to leave, or in the process of leaving, the place; and
(d)     attendance at an educational institution under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; and
(e)     attendance at a place to receive a medical service, to obtain a medical report or certificate (or to be examined for the purpose), to participate in a rehabilitation program or for the purposes of a rehabilitation and return to work plan, or to apply for, or receive, compensation for a compensable injury.
(4) However, an injury does not arise from employment if it arises out of, or in the course of, the worker's involvement in a social or sporting activity, except where the activity forms part of the worker's employment or is undertaken at the direction or request of the employer.
(5) An injury that arises out of, or in the course of, a journey arises from employment only if—
(a)     the journey is undertaken in the course of carrying out duties of employment; or
(b)     the journey is between—
(i) the worker's place of residence and place of employment; or (ii) the worker's place of residence or place of employment and—
(A) an educational institution the worker attends under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; or
(B) a place the worker attends to receive a medical service, to obtain a medical report or certificate (or to be examined for that purpose), to participate in a rehabilitation program, or to apply for, or receive, compensation for a compensable injury, and there is a real and substantial connection between the employment and the accident out of which the injury arises.
(6) However, the fact that a worker has an accident in the course of a journey to or from work does not in itself establish a sufficient connection between the accident and the employment for the purposes of subsection (5)(b).
(7) The journey between places mentioned in subsection (5)(b) must be a journey by a reasonably direct route but may include an interruption or deviation if it is not, in the circumstances of the case, substantial, and does not materially increase the risk of injury to the worker.
Section 43A provided:
43A—Assessment of impairment
(1) This section sets out a scheme for assessing the degree of impairment that applies to a compensable injury that results in permanent impairment.
(2) An assessment—
(a)     must be made in accordance with the WorkCover Guidelines; and
(b)     must be made by a legally qualified medical practitioner who holds a current accreditation issued by the Corporation for the purposes of this section.
(3) The Minister will publish guidelines (the "WorkCover Guidelines") for the purposes of section 43 and this section.
(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; and
(d)     may specify procedures to be followed in connection with an assessment for the purposes of this Division; 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 WorkCover Guidelines, consult with—
(a)     the Australian Medical Association (South Australia) Incorporated; and
(b)     any other prescribed body.
(6) The Corporation will establish an accreditation scheme for the purposes of subsection (2)(b).
(7) The accreditation scheme—
(a)     may provide for a term or period of accreditation, and for the suspension or cancellation of accreditation on specified grounds; and
(b)     may specify terms or conditions of accreditation; and
(c)     may be amended or substituted by the Corporation from time to time.
(8) An assessment of the degree of impairment resulting from an injury for the purposes of this Division must—
(a)     be made after the injury has stabilised; and
(b)     subject to subsection (9), 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.
(9) 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)     assessments are to comply with any other requirements specified by the WorkCover Guidelines or prescribed by the regulations.
(10) An amendment or substitution in relation to the WorkCover Guidelines under subsection (4)(d) will only apply in respect of an injury occurring on or after the date the amendment or substitution takes effect.
(11) A number determined under the WorkCover Guidelines with respect to a value of a person's degree of impairment may be rounded up or down according to any principle set out in the WorkCover Guidelines.
Submissions of the parties

The appellant submits that based on the reasoning of this Court in Marrone the various impairments resulting from the ingestion of medication for the symptoms of the worker’s back injury cannot be disabilities “arising out of the same trauma” as caused the back injury. That is because, although they share one common causal event, they were not wholly caused by the same particular series of events. The worker’s lower back injury was caused by an event or series of events which occurred in the course of his employment in 2008 and 2009. On the other hand, the impairment to the worker’s upper intestinal system, and the other impairments, were caused by a distinct series of events comprising those events which caused the back injury in addition to the taking of some particular opioid medication, or combination of medications, over time following the surgery for the back injury in January 2011.
The appellant submits that there is no basis in the reasoning in Marrone, nor in the text or context of s 43(6), to treat the taking of medication, where that is the immediate cause of a disability, as was found by the judge at first instance, as if it were not an “event” capable of forming part of the series of events giving rise to the disability. Nor is there any proper basis to treat an injury arising from the taking of medication as one and the same injury as the initial injury for which the medication was taken.
The respondent submits that a consideration of the authorities referred to in Martin and the text and context of s 43 and s 43A, in particular s 43A(8) supports the decision of the Employment Tribunal in this matter. His primary submission is that the assessment of his WPI did not enliven the operation of s 43(6). A compensable injury, namely, the lower back injury of 29 January 2009, resulted in the permanent impairments assessed by the judge at first instance, such that it was unnecessary to consider s 43(6), which was concerned with the approach to the assessment of WPI where there were two or more compensable injuries. The respondent disavowed the reasoning of the Full Bench, set out above,[8] that what occurred in this case was separate compensable injuries arising from the same trauma. In the alternative, if it was necessary to consider s 43(6) on the basis that the lower back injury and the impairments resulting from the treatment of that injury, namely, the surgery and the subsequent ingestion of medication, constituted two or more compensable injuries, the injuries arose from the same trauma, because each injury was only compensable because of the event, or series of events, out of which the lower back injury arose.
[8] [2017] SAET 81 at [6].
Principles of construction
The issue on which this appeal turns is a matter of statutory construction. In Certain Lloyd’s Underwriters v Cross[9] in a joint judgment French CJ and Hayne J analysed the principles of statutory construction in the following terms:[10]
[9] [2012] HCA 56, (2012) 248 CLR 378.
[10] [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 (29), 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.)
[Citations omitted].
Marrone v Employers Mutual[11]
[11] [2013] SASCFC 67, (2013) 116 SASR 501.
In Marrone this Court held that for compensable disabilities to be combined pursuant to s 43(6) of the repealed Act it is not sufficient that the compensable disabilities share a common cause or causes; to be combined the disabilities must arise out of the same event or series of events. For that reason this Court held in Marrone that an overuse disability of the left arm did not arise out of, and could not be combined with, a right-arm disability for which the worker overcompensated by making greater use of his left arm.
Kourakis CJ considered the context of the relevant provisions relating to assessments of lump sum compensation found in the repealed Act. He said:[12]
Sections 43 and 43A of the Act are the descendants of a long line of statutory provisions which have provided for the payment of lump sum compensation which is proportionate to the extent of the impairment of a faculty (impairment compensation). The maximum compensation payable for the total loss of a particular faculty generally has been fixed as a percentage of a prescribed sum which is payable in the case of specified catastrophic injuries such as a total and incurable paralysis of the limbs or a total loss of sight. I will refer to that sum as the prescribed maximum award. The percentages of the prescribed maximum award payable for the total loss of other, lesser, faculties were generally fixed in such a way that the sum of the awards made for multiple serious impairments sustained in a single work accident might exceed the prescribed maximum award. In order to ensure that a worker who had sustained multiple impairments from a work accident did not receive a greater award than a worker who had sustained a single catastrophic impairment, the impairment compensation provisions have commonly provided that the impairment compensation awards payable for multiple impairments arising out of the same “occurrence” or “events” must not exceed the prescribed maximum award.
[Citations omitted].
[12] [2013] SASCFC 67 at [6], (2013) 116 SASR 501 at 504.
The Chief Justice identified the purpose of s 43(6) as being to provide greater consistency between awards of lump sum compensation when all the impairments have been caused by the same events. Its purpose “is to reduce what are arguably arbitrary differences between awards of compensation payable to workers with comparable overall impairments depending on whether their impairment arises from the loss of use of a single, or multiple, faculties. The range, nature and extent of impairments caused by an industrial occurrence or event is often a matter of chance. For example, a fall might cause different injuries to several limbs or may result in a single serious, or even, catastrophic spinal injury. Workers would have a valid sense of grievance if the impairment compensation awards made in such cases were not reasonably proportionate to whole of person impairments.”[13]
[13] Marrone v Employers Mutual Ltd [2013] SASCFC 67 at [20], (2013) 116 SASR 501 at 506-507.
The Chief Justice reasoned that for the purposes of s 43(6), trauma means an event, or series of events, out of which a compensable disability arises. The series must include all of the events out of which the injury arose. It must be a comprehensive series. Questions may arise as to whether a step in the progression of an impairment is part of the internal physiological pathogenesis of the injury or whether it is caused by an external event, but any two impairments do not arise out of the same series unless all of the events in the series have operated as a cause of both impairments.[14]
[14] [2013] SASCFC 67 at [28], (2013) 116 SASR 501 at 508.
The Chief Justice explained the rationale for his conclusion in the following terms:[15]
If events A and B are the only causes of injury Y, and events A, B and C are the only causes of injury Z it can be accepted that each of the events A and B are causes of both injury Y and injury Z. Put in another way, injuries Y and Z have, as common causes, events A and B which form part of a series of events which includes the other cause of injury Z. However event C is not also a cause of injury Y. Injury Y arises out of the series of events A:B whereas injury Z arises out of the series of events A:B:C. The two series, self evidently, are not identical. The series which caused injury Y is a subset of the series which caused injury Z. To hold that it is sufficient if the injuries share one or more common, but not all, causes is to substitute for the phrase “arising out of the same [event or series of events]” the phrase “arising out of an event or events which are part of a series of events”.
[15] [2013] SASCFC 67 at [3], (2013) 116 SASR 501 at 503.
White J, with whom Sulan J agreed, considered the legislative history of s 43(6) was strongly suggestive that the expression “same trauma” in the opening line of the subsection is a reference to a particular event, or series of events, which result in two or more disabilities, rather than encompassing compensable disabilities, whenever occurring, which share a common material cause.[16] The subsection is confined to circumstances in which one and the same event, or series of events, causes multiple compensable disabilities. With the exception of disabilities arising from a series of events, it has no application to traumas suffered successively.[17] This construction of s 43(6) was supported by a consideration of s 43(7) and (9). White J said:[18]
Section 43(9) supports the understanding of s 43(6) just outlined. It provides (relevantly) that the prescribed sum to be applied with respect to a particular disability is the amount applying at the time of the “occurrence” of that disability. It also provides for annual indexation of the prescribed sum. In the case of disabilities which develop gradually, which may be the case for many disabilities arising from a series of events, the time of occurrence is governed by s 113(1) of the WRC Act. If s 43(9) contemplated two or more disabilities suffered at different times being treated as one disability, it is natural to suppose that it would have provided for the selection of the prescribed sum to be applied in such cases.
Finally, s 43(7) addresses the circumstance of exacerbated or recurrent compensable disabilities which result in permanent impairments. It operates to preclude double compensation. The fact that such disabilities, which will usually be attributable to successive traumas, are addressed in subs (7) appears to be a strong indication that the opening line of s 43(6) does not encompass disabilities arising from multiple traumas, with just one trauma a shared material cause.
[Citation omitted.]
[16] [2013] SASCFC 67 at [64], (2013) 116 SASR 501 at 515.
[17] [2013] SASCFC 67 at [86], (2013) 116 SASR 501 at 520.
[18] [2013] SASCFC 67 at [65]-[66], (2013) 116 SASR 501 at 515-516.
White J considered that s 43(6) uses the expression “compensable disabilities” in reference to the resulting impairments, or at least to both the disabilities and the impairments, rather than to the disabilities which cause those impairments. White J held that the disabilities to which s 43(6) refer seem to be injuries in the sense of impairment.[19] Section 43(6) was subsequently amended to substitute the expressions “injury” and “injuries” for the expressions “disability” and “disabilities”. I do not consider this affects the construction given to that provision in Marrone.
Martin v Return to Work SA[20]
[19] [2013] SASCFC 67 at [90], (2013) 116 SASR 501 at 521.
[20] [2016] SAET 95.
In Martin the Full Bench of the Employment Tribunal allowed an appeal where a judge of the Employment Tribunal had rejected a claim for combination pursuant to s 43(6) on the basis that impairments on account of surgeries performed for the compensable disability, while causally connected with that injury in a general sense, did not arise from “the same trauma”. The judge’s conclusion relied upon the reasoning in Marrone.
The Full Bench considered the judge’s conclusion to be incorrect. The Full Bench found that the judge’s conclusion proceeded from the premise that the original injury and the consequences of treatment are to be treated as separate compensable injuries. The Full Bench rejected that premise. It did so in reliance upon the same line of authority relied upon by the Full Bench in this case, namely, Lindeman, Mahony and Migge. The Full Bench concluded:[21]
In our view, relevant authorities and common sense lead to the conclusion that provided the medical treatment is made necessary because of the original injury, short of gross negligence that might break the chain of causation, any adverse consequences of that treatment should be regarded as forming part of the original compensable injury.
It follows that the so called Marrone principles do not apply to this issue and the learned Deputy President’s ruling in respect of it must be set aside.[22]
[Footnotes omitted.]
[21] [2016] SAET 95 at [66]-[67].
[22] Although it is not necessary to decide for the purposes of this appeal, the correctness of the qualification said to be established in Mahony that negligent medical treatment might break the causal chain in relation to the compensability of the consequences of surgical or medical treatment of the work injury must be doubted, particularly in light of the different statutory context under the repealed Act, especially s 30(3)(e).
Consideration
At issue is whether the respondent suffered a single compensable injury or two or more compensable injuries within the meaning of s 43(6). If the answer is the former, then s 43(6) does not apply. If the answer is the latter, there is the further question of whether the respondent’s compensable injuries arose from the same trauma. It is convenient first to address the question of whether the respondent suffered a single compensable injury or two or more compensable injuries within the meaning of s 43(6). The starting point is the concept of “injury”.
In Military Rehabilitation and Compensation Commission v May,[23] Gageler J considered the ordinary sense in which the term “injury” is used in the context of workers compensation legislation. He said:[24]
An injury, it has long been repeatedly explained, is some definite or distinct “physiological change” or “physiological disturbance” for the worse which, if not “sudden” is at least “identifiable”. The universality of that explanation has been questioned, and the comment has fairly been made that “a distinct physiological change is not itself an expression of clear and definite meaning”. The expression has nevertheless been shown by repeated usage to have utility as an exposition of the particular sense in which injury has been used, and continues to be used, in the particular legislative context.
[Citations omitted.]
[23] [2016] HCA 19, (2016) 257 CLR 468.
[24] [2016] HCA 19 at [75], (2016) 257 CLR 468 at 486.
An injury was compensable under the repealed Act pursuant to s 30, if it arose from employment. I have set out the terms of that provision earlier in these reasons.
Section 43 is not concerned with establishing the test for compensability. That work is performed by s 30. Whether an injury is compensable depends on whether it arises from employment. An injury arises from employment if it arises out of or in the course of employment. That poses either a causal or temporal relationship with employment.
Section 43 prescribes the basis for the entitlement to lump sum compensation for non-economic loss where compensable injury results in permanent impairment. It prescribes a series of overarching principles for the purposes of undertaking that assessment of compensation. The most important of those principles are that any degree of impairment will be assessed in accordance with the provisions of s 43A and the WorkCover Guidelines;[25] that an entitlement to lump sum compensation does not arise if the degree of permanent impairment is less than five per cent;[26] that an entitlement does not arise in relation to psychiatric impairment;[27] that where there is impairment from an injury in the nature of an aggravation of a prior compensable injury for which compensation has been paid, there will be a reduction of the lump sum payable having regard to the provisions of the WorkCover Guidelines;[28] that lump sum compensation for non-economic loss is not payable after the death of the worker;[29] and that there are circumstances in which two or more compensable injuries arising from the same trauma may together be treated as one injury and assessed using any combination or other principle set out in the WorkCover Guidelines.[30] It is that latter principle which is enshrined in s 43(6).
[25] Section 43(10).
[26] Section 43(4).
[27] Section 43(5).
[28] Section 43(7).
[29] Section 43(11).
[30] Section 43(6).

There are two features that emerge from that analysis relevant to the resolution of the issue which arises on this appeal.
First, s 43A is subordinate to s 43 in the hierarchy of the provisions of the repealed Act. Section 43 is concerned with the assessment of that lump sum compensation. Section 43A is the subordinate provision which sets out the scheme for assessing the degree of impairment upon which the assessment of lump sum compensation is made. As the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority.[31]
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the Court “to determine which is the leading provision and which is the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[Citations omitted.]
[31] [1998] HCA 28 at [70], (1998) 194 CLR 355 at 381-382.
The scheme for assessing the degree of impairment that applies to a compensable injury that results in permanent impairment prescribed by s 43A cannot derogate from the governing provisions of s 43.
Second, s 43(6) is both permissive and limiting. It permits combination but circumscribes the condition under which combination can occur. Where a worker suffers compensable injuries resulting in permanent impairment, s 43(6) prescribes the circumstances in which those injuries may be combined and treated as one injury for the purposes of assessing the entitlement to lump sum compensation for non-economic loss.
In that context the Full Bench in this matter and in Martin fell into error by applying tests of compensability to the application and operation of s 43(6) where the work to be performed by that provision is not to determine the compensability of an injury but to decide whether for the purposes of assessing an entitlement to lump sum compensation for non-economic loss, two or more compensable injuries can be combined. This distinction was explained in Return to Work Corporation of South Australia v Preedy,[32] where in reasons with which Kourakis CJ and Parker J agreed, I said:[33]
The Full Bench in Martin relied on a line of authority commencing with the High Court’s judgment in Lindeman Ltd v Colvin and followed in the dissenting judgment of Mason JA (as he was then) in Migge v Wormald Bros Industries Ltd and Mahony v J Kruschich (Demolitions) Pty Ltd. Those authorities were concerned with the question of compensability and, in particular, whether the adverse consequences of medical treatment for a work injury could be characterised as an injury arising out of or in the course of employment and whether the consequent incapacity resulted from the work injury. ... The Tribunal [in Martin] … was concerned with whether the worker fell within the provisions of s 43(6)(a) of [the repealed Act]. That involves the question of whether two compensable injuries arise from the same trauma. That question is not answered by reasoning that any adverse consequences of medical treatment for a work injury is to be regarded as forming part of the compensable work injury.
[Citations omitted.]
[32] [2018] SASCFC 55, (2018) 131 SASR 86.
[33] [2018] SASCFC 55 at [31], (2018) 131 SASR 86 at 98.
The line of authority relied on by the Full Bench in Martin merely explains how a particular injury is compensable because of a causal relationship between the aggravation of the work injury by subsequent medical or surgical treatment.
The question whether the condition for combination has been met is not answered by consideration of whether a permanent impairment resulting from surgical or medical treatment undertaken in respect of a compensable injury is itself compensable by reason of that causal relationship. Rather, the question is whether, for the purposes of the application and operation of s 43(6), permanent impairment that results from surgical or medical treatment of a compensable injury is to be characterised as a separate and distinct compensable injury from the original compensable injury that was the subject of the medical or surgical treatment.
In my view, the answer to that question is in the affirmative. That conclusion is consistent with the analysis in Marrone and a consideration of the terms of s 30(3)(e) of the repealed Act.
In Marrone this Court held that s 43(6) is to be understood as referring to a worker who suffers two or more compensable disabilities arising from one and the same trauma. This Court in Preedy recently has affirmed the correctness of the reasons in Marrone, albeit while distinguishing the decision. The decision in Marrone is not “plainly wrong” and is binding on this Court.[34] I reject the respondent’s invitation not to follow it.
[34] Beneficial Finance Corporation Ltd v Price Waterhouse (1996) 68 SASR 19 at 24 and 62; Pooraka Holdings Pty Ltd v Participation Nominees Pty Ltd (1989) 52 SASR 148 at 157.
The work to be performed by the opening words of s 43(6) is to prescribe the condition for combining two or more compensable injuries in assessing an entitlement to lump sum compensation for non-economic loss. That condition is that the compensable injuries must arise from the same trauma. That is a condition of limitation. It restricts the circumstances in which combination is to occur for the purposes of assessing the entitlement to lump sum compensation. That is its statutory purpose. That purpose would be frustrated if the Act is construed in a way which treats distinct physiological changes which do not arise from the same event or events as being one injury, and thereby circumventing the limitation the legislature has imposed. In effect, it would permit combination to occur without statutory authorisation and by eliminating the condition precedent for combination adopted by the legislature.
Likewise, the terms of s 30(3)(e) strongly indicate that distinct physiological changes which result from medical or surgical treatment of an existing compensable injury are to be characterised as a separate compensable injury not part of the existing compensable injury. The extension of a worker’s employment to include attendance at a place to receive a medical service, which is defined in s 3(1) to include treatment by a medical expert[35] for a compensable injury, implies that an injury suffered during such attendance is itself a separate and discrete compensable injury as it arises from employment within the meaning of s 30(1).
[35] “Medical expert” is defined to mean (a) a legally qualified medical practitioner; (b) a registered dentist; (c) a registered psychologist; (d) a registered optician; (g) a registered physiotherapist; (f) a registered chiropractor; (g) a registered pediatrist; (h) a registered occupational therapist; (i) a registered speech pathologist; (j) a registered osteopath.
The respondent submits that the terms of s 43A(8)(b) support his contention that the symptoms resulting from his ingestion of opioid medication following the surgery for the fusion of his lumbar spine are to be treated as incidents of his original back injury. I do not accept this submission.
That provision requires an assessment of the degree of impairment resulting from a compensable injury to be based on the worker’s current impairment as at the date of the assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury.
Section 43A(8)(b) regulates the assessment of the degree of impairment resulting from a compensable injury. The assessment of impairment cannot take place until the compensable injury is identified. As I have indicated earlier, s 43A is a subordinate provision to s 43. The principles of assessment prescribed by s 43A and the Guidelines made under that section apply to impairments resulting from identified compensable injuries. Those principles cannot derogate from the governing provisions of s 43. The application of the principle prescribed by s 43A(8)(b) allowing for an assessment 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 in respect of that compensable injury, cannot be applied so as to allow injuries which do not arise from the same event or series of events, to be treated as though they did. To do so would be inconsistent with the reasoning in Marrone.
Section 43A(8) requires an injury-specific assessment. It applies to signs and symptoms that result from the occurrence of the compensable injury following medical or surgical treatment. Those are signs and symptoms caused by the distinct physiological change that constitutes the compensable injury. If surgical or medical treatment cause different physiological changes constituting a further injury resulting in permanent impairment, that impairment is to be assessed separately unless the condition for combination in s 43(6) is made out.
In this context I note that the premise of the reasoning of the plurality in the Full Bench is predicated on there being separate compensable injuries in this case.[36]
[36] [2017] SAET 81 at [19].
That does not preclude the possibility that in some circumstances changes in the signs and symptoms following medical or surgical treatment undergone by the worker in respect of the impairment resulting from the compensable injury might not be characterised as being part of the impairment resulting from that injury. That would depend on the facts of the matter. For example, a back injury may result in levels of pain and restriction of movement which might change as a result of medical or surgical treatment. But those are not the facts of this case.
For these reasons, I reject the respondent’s submission that s 43(6) does not apply to his case because the complications caused by his ingestion of opioid medication to relieve the symptoms of his lumbar spine injury following the fusion surgery and the original back injury are all one compensable injury. The impairments to the respondent’s upper and lower digestive systems, his urinary and reproductive system and mastication and deglutition are separate physiological changes from the impairment of his lumbar spine, constituting a distinct, subsequent compensable injury.
That leaves the respondent’s alternative contention that if s 43(6) applies to his case, those impairments are caused by the same trauma as caused his lumbar spine injury.
I do not accept this submission.
Marrone requires that before combination can occur the compensable injuries must arise from the same trauma. That is to say the injuries must arise from one and the same event or series of events. As White J explains in Marrone the legislature in enacting s 43(6) uses the expression “disability” in the sense of “impairment”.[37] For the reasons set out above the amendment substituting “injury” for “disability” does not alter that construction.
[37] [2013] SASCFC 67 at [90], (2013) 116 SASR 501 at 521.
Plainly, the impairments that arose as a complication of the respondent’s ingestion of opioid medication to relieve the symptoms of his lumbar spine injury following surgery arose not from the injury to his lumbar spine, but from his ingestion of opioid medication. While those impairments were causally related to his lumbar spine injury, the crucial and necessary event for the development of those impairments was the ingestion of the opioid medication. As that event occurred subsequent to the events which resulted in the injury to his lumbar spine, it was not the case that those injuries arose from the same trauma as the lumbar spine injury. Accordingly, the condition for combination prescribed by s 43(6) was not made out.
Disposition of the appeal
At first instance, because Judge Calligeros considered himself bound to apply the reasoning of the Full Bench in Martin, he considered he did not need to make any findings as to which particular medication or combination of medications, or which instance of taking medication, gave rise to a trauma which resulted in a medication-related impairment. Nor did his Honour make any finding as to when these events occurred. His Honour expressly declined to proceed in that way.[38] Accordingly, it is necessary for the matter to be remitted to the Employment Tribunal for appropriate factual findings to be made.
[38] [2017] SAET 16 at [66].
I would allow the appeal. I would set aside the order of the Full Bench dismissing the appeal from the judgment of Judge Calligeros. I would set aside the order awarding compensation to the respondent pursuant to s 43 of the repealed Act in the sum of $359,190. I would remit the matter to the Employment Tribunal for an assessment of compensation pursuant to s 43 to be decided in accordance with these reasons.
HINTON J:
I agree with Stanley J for the reasons he gives that the appeal should be allowed. I also would join in the orders Stanley J proposes.