Return to Work Corporation of South Australia v Preedy - [2018] SASCFC 55

Supreme Court of South Australia
(Full Court)
RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v PREEDY
[2018] SASCFC 55
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Parker)
15 June 2018
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE
WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION - AMOUNT OF COMPENSATION DURING INCAPACITY - LUMP SUM PAYMENTS - PERMANENT IMPAIRMENT AND LOSS
Appeal from a decision of the Full Bench of the South Australian Employment Tribunal (SAET).
The worker injured his left shoulder in the course of employment. While receiving physiotherapy treatment for the shoulder injury, the worker sustained a neck injury.
The Return to Work Corporation of South Australia (Corporation) determined the worker’s claim for a lump sum for non-economic loss under s 58 of the Return to Work Act 2014 (SA) (Act) in respect of the neck injury based on a whole person impairment (WPI) assessment of 27 per cent. The worker challenged the determination before a judge of the SAET, contending that both injuries arose from the same cause such that s 22(8) of the Act applied, requiring that the impairments be assessed together or combined to determine his degree of impairment. The combination of the two impairments gave rise to an impairment assessment of 35 per cent. The judge rejected the worker’s contention.
The Full Bench of the SAET allowed the worker’s appeal, holding that in assessing the worker’s WPI for the purpose of calculating an entitlement to a lump sum for non-economic loss pursuant to s 58 of the Act, the impairment assessment for the neck injury should be combined with the assessment of the impairments he had earlier been assessed as suffering as a result of the shoulder injury.
On appeal to this Court, the issue is whether impairments which do not result from the same trauma and would therefore not be combined pursuant to s 58(6) of the Act for the purpose of calculating a non-economic loss payment, are nonetheless impairments resulting from the same injury or cause within the meaning of those terms in s 22(8)(c) of the Act entitling the worker to have their claim for lump sum compensation for permanent impairment assessed together or combined to determine the degree of WPI.
Held (per Stanley J, Kourakis CJ and Parker J agreeing): Appeal allowed.
1. Pursuant to s 58(8), in determining a worker’s entitlement to compensation for non-economic loss by way of a lump sum, the degree of the worker’s permanent impairment is to be assessed in accordance with s 22. Section s 22(8) prescribes the approach to be taken in assessing impairments from the same injury or cause. By contrast, s 58(6)(a) prescribes the approach to be taken in determining an entitlement to lump sum compensation for non-economic loss where a worker suffers two or more injuries arising from the same trauma.
2. The Full Bench’s conclusion that the neck injury and left shoulder injury arose from the same trauma is infected by error. The question of whether the worker is entitled to have the neck injury and left shoulder injury assessed together or in combination to determine the degree of impairment depends on whether the worker suffered two work injuries from the same trauma or whether the worker’s impairments are from the same injury or cause.
3. The appeal should be allowed and the matter remitted to a single presidential member of the SAET to determine that factual question in light of these reasons.
Worker’s Rehabilitation and Compensation Act 1986 (SA) s 43; Return to Work Act 2014 (SA) s 21, s 22, s 56, s 58; Safety, Rehabilitation and Compensation Act 1998 (Cth), referred to.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286, applied.
Marrone v Employers Mutual Ltd (2013) 116 SASR 501, distinguished.
Preedy v Return to Work SA [2017] SAET 71, not followed.
Workers’ Rehabilitation and Compensation Corporation v Hillier & Van Wyk (1997) 193 LSJS 57; Martin v Return to Work SA [2016] SAET 95, discussed.
Preedy v Return to Work SA [2016] SAET 36; Lindeman Ltd v Colvin (1946) 74 CLR 313; Migge v Wormald Bros Industries Ltd (1972) 2 NSWLR 29; Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; Return to Work Corporation of SA v Watkins [2017] SASCFC 149, considered.

RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v PREEDY
[2018] SASCFC 55
Full Court: Kourakis CJ, Stanley and Parker JJ

KOURAKIS CJ: I would allow the appeal for the reasons given by Stanley J. I agree with the orders he proposes.
I make the following additional observations.
The circular, and all comprehending, definition of injury makes it difficult to ascribe meaning to the contrasting use of the terms ‘impairment’ and ‘injury’ in ss 22 and 58 of the Return to Work Act 2014 (SA) (the Act). Furthermore, the purpose behind the repetition of the same, or very similarly worded, provisions in both ss 22 and 58 of the Act is obscure. The constructional difficulties presented by this, and other appeals concerning these sections, warrants the attention of Parliament.
Ultimately the internal references in ss 58(1) and (8) of the Act, to conducting an assessment, in accordance with s 22 of the Act, of the impairment, for which s 58 provides an entitlement to non-economic loss compensation, demands the conclusion that s 22(8)(c) of the Act is determinative of the injuries which are to be ‘assessed together or combined using the principles of the Impairment Assessment Guidelines’. The words ‘from the same injury or cause’ in s 22(8)(c) of the Act should not be read down by reference to the term ‘same trauma’ in s 58(6) of the Act because of the critical role the former subsection has in determining the entitlement of seriously injured workers to income maintenance, beyond the otherwise relatively short period of two years, for the purpose of s 21 of the Act.
STANLEY J:

Introduction
This is an appeal from a decision of the Full Bench of the South Australian Employment Tribunal (the Tribunal).
The worker injured his left shoulder in the course of employment in 2012 and claimed compensation for that injury. The claim was accepted.
In October 2013 the Return to Work Corporation of South Australia (Corporation) determined that the injury resulted in a combined whole person impairment (WPI) of 11 per cent, and that as a consequence, the worker was entitled to compensation for non-economic loss pursuant to s 43 of the Workers Rehabilitation and Compensation Act 1986 (SA) (the 1986 Act) in the amount of $21,792.
While receiving physiotherapy treatment for the left shoulder injury on 16 April 2013, the worker sustained a neck injury being a fracture of the C5 vertebrae. He claimed compensation which was accepted by a determination made by the Corporation in May 2015.
The worker did not know at the time of the physiotherapy that he was suffering from multiple myeloma, a cancer of blood cells in bone marrow. He had bony lesions throughout his cervical spine suggestive of metastasis. Dr Porteous gave evidence that the underlying cause of the C5 fracture was multiple myeloma. He considered it more likely than not the multiple myeloma in the C5 vertebrae would have eventually resulted in a fracture of the vertebrae. Nonetheless, he considered that the physiotherapy contributed to the fracture and the worker’s claim was accepted on that basis.
On 13 January 2016 the Corporation determined the worker’s claim for a lump sum for non-economic loss in respect of the C5 fracture. It determined the worker’s entitlement to compensation for non-economic loss under s 58 of the Return to Work Act 2014 (SA) (the Act) was $71,985.[1] This was based upon an impairment assessment of 27 per cent.
[1] Although the injury was an existing injury, the Act applied to the application for lump sum compensation for non-economic loss pursuant to clause 29(1)(a) and (3) of Schedule 9 to the Act.
On 3 February 2016 the worker challenged the determination, contending that the left upper limb injury and the C5 fracture are the same injury or arise from the same cause, and that as a result, s 22(8)(c) of the Act applied, requiring that the impairments resulting from the various injuries be assessed together or combined to determine his degree of impairment. It was said that this was consistent with s 7(6) of the Act and consistent with the decision of this Court in Workers’ Rehabilitation and Compensation Corporation v Hillier & Van Wyk[2] and clause 1.18 of the Impairment Assessment Guidelines (Guidelines).[3]The worker contended that the combination of the two impairments gave rise to a total assessment of 35 per cent.
[2] (1997) 193 LSJS 57.
[3] Published under subsection 22(3) of the Return to Work Act 2014.
A judge of the Tribunal rejected the worker’s contention. The Full Bench of the Tribunal allowed the worker’s appeal from that decision. The Full Bench held that in assessing the worker’s WPI for the purpose of calculating an entitlement to a lump sum for non-economic loss pursuant to s 58 of the Act, the worker’s impairment assessments for his neck injury should be combined with the assessment of the impairments he had earlier been assessed as suffering as a result of a shoulder injury.
At issue is whether impairments which do not result from the same trauma, and would therefore not be combined pursuant to s 58(6) of the Act for the purpose of calculating a non-economic loss payment, are nonetheless impairments resulting from the same injury or cause within the meaning of those terms in s 22(8)(c) of the Act entitling the worker to have his or her claim for lump sum compensation for permanent impairment assessed together or combined to determine the degree of WPI.
The reasons of the judge at first instance
The worker argued that the two impairment assessments should be combined pursuant to s 22(8)(c) either because they were from the same injury or the same cause. The judge considered the operation of s 22(8) and s 58(6). He rejected the submission that s 22(8)(c) conferred a right to aggregate or combine the two impairments in determining the worker’s entitlement pursuant to s 58. He said:[4]
The reference to “the same injury or cause” in s 22(8) may suggest that a broader test than that found in s 58(6) might have been comprehended by Parliament in relation to the circumstances in which PIAs [Permanent Impairment Assessments] can be combined. However, I have concluded that the language and structure of the RTW Act suggest that s 58(6) and s 22(8)(c) of the RTW Act perform different functions. Section 58(6) prescribes the conditions required for separate injuries to be treated as one, or combined. Section 22(8)(c) contains a set of rules and procedures under which PIAs are to be quantified.
…
If as Mr Cole contends, s 22(8)(c) of the RTW Act prescribes the circumstances in which combination can take place, it would cover part of the same field of operation of s 58(6). That would create interpretational conflicts between the two provisions as it has in this matter.
Mr Cole submitted that s 22(8)(c) would not have much work to do if its role is to facilitate the making of assessments, rather than provide a power or basis upon which to combine assessments. I am not persuaded by this submission. Section 22(8)(c) provides that “impairments from the same injury or cause are to be assessed together or combined” (bolding added). The disjunctive is used in that phrase because in some cases, impairments will be assessed together and not combined, and in other cases they will be assessed together and combined. It follows that s 22(8)(c) has work to do other than in relation to combining assessments.
[4] Preedy v Return to Work SA [2016] SAET 36 at [35], [39]-[40].
Noting that s 58(6) is in virtually identical terms to s 43(6) of the 1986 Act, and applying the Full Court’s analysis of the latter provision in Marrone v Employers Mutual Ltd,[5] (Marrone) the judge found that the two injuries had not arisen from the same trauma:[6]
The neck injury sustained by Mr Preedy on 16 April 2013 took place during physiotherapy treatment. The left shoulder injury of 24 August 2012 was sustained when Mr Preedy was loading a heavy tool box into his vehicle. The neck injury did not result from the same trauma which caused the left shoulder injury. The left shoulder injury occurred eight months before the C5 vertebrae fracture. The two injuries were caused by different trauma, sustained at different times, to different parts of the body. To use the language of White J, the two injuries Mr Preedy seeks to combine arose from successive traumas.
…
If one were to consider Mr Preedy’s impairments from such a viewpoint, whether there was a sufficient causal link between the left shoulder injury and the neck injury for the latter to be accepted, or whether s 30(3)(e) of the repealed Act operated to deem the neck injury to be compensable, it was the presence of undiagnosed multiple myeloma which Dr Porteous thought was responsible for the C5 fracture. No valid sense of grievance could arise in the situation at hand.
[Citation omitted].
[5] [2013] SASCFC 67, (2013) 116 SASR 501.
[6] [2016] SAET 36 at [56], [58].
The judge explained why the cases involving causation and s 30(3)(e) of the 1986 Act, upon which the worker relied, did not resolve the question of the interpretation or application of s 58(6). He rejected the argument that by some analogy with s 7(6) the C5 fracture was to be treated as one and the same as the original work injury. He concluded:[7]
It is the function of s 58(6) of the RTW Act to determine whether or not multiple injuries may be treated together as one injury and combined. For combination to occur, the multiple injuries in question must arise from the same trauma.
It is the function of s 22(8) of the RTW Act to detail the principles by which PIAs are made and to assist with mechanical aspects of making, ordering and, if appropriate, combining assessments. Section 22(8)(c) does not confer power to combine assessments separately to s 58(6).
By reference to the ordinary meaning of the language of s 58(6), and by reference to how the predecessor provision to s 58(6) was construed in Marrone, Mr Preedy’s left shoulder injury and his neck injury did not arise from the same trauma. It follows that his left shoulder injury PIA and his neck injury PIA should not be combined.
[7] [2016] SAET 36 at [79], [80] and [81].
Reasons of the Full Bench
The worker appealed to the Full Bench. The Full Bench proceeded on the basis that the reasons of an earlier Full Bench in Martin v Return to Work SA,[8] which had been decided since the judgment at first instance in this matter had been delivered, were the “gravamen of the worker’s appeal”. In Martin the Full Bench had held that injuries which were known risks of surgery necessitated by a work injury arose from the “same trauma” as the work injury within the meaning of s 43(6)(a) of the 1986 Act. The Full Bench relied upon its conclusion in Martin that:[9]
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.
[Citation omitted].
[8] [2016] SAET 95.
[9] [2016] SAET 95 at [66].
The Full Bench then concluded as follows:[10]
It will be noted that the statement of the Full Tribunal made reference to, “medical treatment”. The respondent contends this was obiter and unnecessary for the decision the Full Tribunal was called upon to make. If so, this case provides the opportunity to make clear that the scope includes the physiotherapy treatment the worker underwent in this case on 16 April 2013.
[10] Preedy v Return to Work (SA) [2017] SAET 71 at [27].
Although it considered this conclusion was sufficient to dispose of the appeal, the Full Bench went on to consider the “apparently conflicting legislative provisions” in s 22(8)(c) and s 58(6) of the Act. They said:[11]
The Deputy President could have only reached this conclusion by viewing s 22 as subordinate to s 58. We respectfully disagree. In our view, it is clear that s 22 is the leading and dominant provision. It prescribes how all assessments of whole person impairment for the purposes of the Act are to be made. Section 58 is subordinate to it. All it does, is prescribe whether such assessments give rise to an entitlement to lump sum compensation for non-economic loss, and if so, how much they should be.
Looked at in this light, the two provisions are entirely compatible as they are, and there is no reason to depart from the ordinary and grammatical meaning of the words used in s 22(8) and to read them down as qualified by s 58(6).
We would therefore construe them as meaning as follows:
For the purposes of making the assessment under s 22, multiple impairments from the same injury or cause are to be assessed together or combined, but in connection with an assessment of non‑economic loss under s 58, they are only combined if they arise from the same trauma.
[11] Preedy v Return to Work (SA) [2017] SAET 71 at [36]-[38].
The Full Bench held that the result was that the two impairments “should be treated as one injury for the two arise from the same trauma” and that there was “no point in dealing with the secondary argument of the worker regarding s 7(6) of the RTW Act”. The Full Bench allowed the appeal and held that the combined whole person impairment was to be set at 35 per cent.[12]
[12] [2017] SAET 71 at [39]-[40].
Submissions on appeal to this Court
The Corporation contends that on the facts as found the two impairments were associated with injuries which did not arise from the same trauma within the meaning of s 58(6) of the Act, and that there is no warrant within s 22(8) of the Act for combining the two impairment assessments. The Corporation submits that the judge’s decision at first instance is correct and should be restored.
The Corporation submits that the Full Bench erred by concluding that the two injuries arose from the same trauma within the meaning of either s 58(6) or s 22(10) of the Act. It contends that the Full Bench’s reliance upon Martin was misplaced, either because Martin fails to apply the correct approach as indicated by Marrone, or because the facts of the present case differ significantly from those in Martin. Having regard to clause 44 of Schedule 9, the worker was only entitled to a new assessment under Part 2, Division 5 of the Act if the neck injury was not the same injury and did not arise from the same trauma. On the basis that the two injuries did not arise from the same trauma, the Corporation contends there was no warrant for a conclusion that s 22(8)(c) required the impairments resulting from them to be combined, and the judge at first instance was correct in this regard. The Corporation submits that the expression “cause” in s 22(8)(c) needs to be understood in its context and having regard as well to the terms of s 22(10) and that the impairment relating to the neck injury was not an impairment “from the” shoulder injury or the incident at work which caused the shoulder injury.

The worker submits that the reasoning of the Full Bench is correct in its reliance on its earlier decision in Martin. Martin reflects the general principle that where medical treatment is made necessary because of an original injury, any impairment caused by the adverse consequences of that treatment are to be regarded as being from the same injury unless the medical treatment has been so grossly negligent as to break the chain of causation. The worker submits that the proper construction of the Act does not support s 22(8) being subordinate to s 58. By its terms s 58 does not apply to some of the assessments that are required pursuant to s 22. The reasoning of the Full Bench was correct and should be upheld. In the alternative, the worker submits the reasoning in Marrone no longer applies to the different statutory context in the Act compared with the 1986 Act. Section 58 is subordinate to s 22(8). Section 22 is the central provision of the Act which identifies the way in which permanent impairments should be assessed. Section 58(6) is limited. It only applies to assessments of compensation for non-economic loss.
The statutory provisions
The issue of statutory construction which this appeal raises requires consideration of the operation of s 22 and s 58. They provide:
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.
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.
It is also necessary to refer to s 21 which provides:
21—Seriously injured workers
(1)This Act makes special provision in a number of places for seriously injured workers.
(2)For the purposes of this Act, a seriously injured worker is a worker whose work injury has resulted in permanent impairment and the degree of whole person impairment has been assessed under Division 5 for the purposes of this Act to be 30% or more.
(3)Pending an assessment of permanent impairment, the Corporation may on its own initiative, or must on application made by the worker in accordance with the regulations, make an interim decision to the effect that a worker will be taken to be a seriously injured worker under this Act if—
(a)     it is satisfied, or it appears, that the worker's injury has or will result in permanent impairment; and
(b)     it appears that the degree of whole person impairment is likely to be 30% or more,
and the Corporation's decision will have effect under this Act in accordance with its terms.
(4)An interim decision under subsection (3)—
(a)     must be made in accordance with any requirements or principles prescribed by the regulations; and
(b)     has effect until an assessment of whole person impairment has been made under Division 5.
(5)Unless or until a worker is assessed or determined to be a seriously injured worker as contemplated by this section, the worker will be taken not to be a seriously injured worker for the purposes of this Act.
(6)However, if a worker is taken not to be a seriously injured worker and the worker at a later time is characterised as a seriously injured worker under subsection (2) or determined to be a seriously injured worker under subsection (3)—
(a)     the worker will be taken to have been a seriously injured worker from the date of the injury; and
(b)     the worker is entitled to be paid the amounts that would have constituted the worker's entitlements under this Act had the worker been taken to be a seriously injured worker from the date on which an incapacity for work in consequence of the relevant work injury first occurred after taking into account any amount already paid under this Act.
(7)An amount paid under subsection (6)(b) will be increased by interest at the prescribed rate.
(8)In assessing whether the 30% threshold under this section has been met (that is, whether the degree of whole person impairment resulting from a work injury is at least 30%)—
(a)     impairment resulting from physical injury is to be assessed separately from impairment resulting from psychiatric injury; and
(b)     in assessing impairment resulting from physical injury or psychiatric injury, no regard is to be had to impairment that results from consequential mental harm; and
(c)     in assessing the degree of whole person impairment resulting from physical injury, no regard is to be had to impairment that results from a psychiatric injury or consequential mental harm; and
(d)     the 30% threshold is not met unless the degree of whole person impairment resulting from physical injury is at least 30% or the degree of whole person impairment resulting from psychiatric injury is at least 30%.
(9)The Corporation is not required to consider more than 1 application by a worker under subsection (3) unless directed to do so by the Tribunal on application made by the worker under this subsection.
(10)Nothing in this section limits or affects the operation of Part 4 Division 6 or Division 7 or Part 5.
Section 56 is also relevant. It 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:
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.
Analysis
At issue is a question of statutory construction. That requires a consideration of the text, context and purpose of the Act.
At issue is whether the worker is entitled to have the impairments resulting from his left shoulder injury and his neck injury assessed together or in combination to determine the degree of WPI in assessing his entitlement to lump sum compensation for non-economic loss pursuant to s 58. That involves the determination of the proper construction of s 22(8)(c) and s 58(6).
The Full Bench of the Tribunal allowed the worker’s appeal on two bases.
First, it reasoned that the worker’s neck injury was the result of medical treatment for his earlier left shoulder injury. In accordance with the Full Bench’s reasons in Martin, it held that the adverse consequence of the physiotherapy treatment had to be regarded as arising from the same trauma. In taking that approach, the Full Bench fell into error. What the Full Bench in Martin decided is that where medical treatment is made necessary because of a work 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. So much may be accepted.
The Full Bench in Martin relied on a line of authority commencing with the High Court’s judgment in Lindeman Ltd v Colvin[13] and followed in the dissenting judgment of Mason JA (as he was then) in Migge v Wormald Bros Industries Ltd[14] and Mahony v J Kruschich (Demolitions) Pty Ltd.[15]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 answer to those questions does not resolve the issue of whether the statutory test for aggregation and combination in s 22(8)(c) or s 58(6) has been satisfied. In fact, Martin was a case under the 1986 Act. The Tribunal did not consider the provisions of the Act. It was concerned with whether the worker fell within the provisions of s 43(6)(a) of the 1986 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. In this case the worker’s claims for lump sum compensation for non-economic loss in respect of both injuries were accepted. There was no issue of compensability. The only issue was whether the s 58 determination was erroneous because it did not involve or result in an aggregation of the WPI assessment relating to the neck with the earlier WPI assessment for the worker’s left shoulder.
[13] [1946] HCA 35, (1946) 74 CLR 313.
[14] (1972) 2 NSWLR 29. Mason JA’s dissenting judgment was approved on appeal to the High Court in Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236.
[15] [1985] HCA 37, (1985) 156 CLR 522.
Second, the Full Bench construed the provisions of s 22(8)(c) and s 58(6) and found that the latter is subordinate to the former so as to conclude that the provisions are compatible. On this basis the Full Bench held that for the purposes of making the assessment under s 22, multiple impairments from the same injury or cause are to be assessed together or combined, but in connection with an assessment of non-economic loss under s 58, they are only combined if they arise from the same trauma.

Central to the issue of construction is the identification of the respective purposes of s 22(8)(c) and s 58(6) having regard to their text and context, including their legislative history.
That exercise directs attention to certain aspects of the scheme of the Act.
The Act applies to an injury if (and only if) it arises from employment.[16] As I have referred to earlier, s 7(6) provides that any injury attributable to medical treatment performed with due care and skill by a person professing to have particular skills and undertaken or provided while attending at a place referred to in s 7(5)(e) is deemed to constitute part of the original work injury. Section 7(5)(e) extends the concept of the worker’s employment to include, inter alia, attendance at a place to receive a medical service for a work injury. “Work injury” is defined by s 4(1) to mean an “injury” that arises from employment under s 7.
[16] Section 7(1).
“Injury”, in relation to a worker, is defined to mean:
(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 an injury that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury.
“Medical services” are defined to mean, inter alia, treatment by a health practitioner.
“Health practitioner” is defined to mean, inter alia, a person who is registered under the Health Practitioner Regulation National Law (other than as a student) and is a physiotherapist.
The Act makes special provisions in a number of places for seriously injured workers.[17] For the purpose of the Act a seriously injured worker is a worker whose work injury has resulted in permanent impairment and the degree of WPI has been assessed under Part 2, Division 5 for the purposes of the Act to be 30 per cent or more.[18] Those special provisions include a regime of increased benefits for weekly payments of income maintenance,[19] medical expenses,[20] and different provisions in relation to common law claims.[21] Further, a seriously injured worker is precluded from any entitlement to a lump sum payment for future economic loss.[22] However, there is no comparable restriction on any entitlement to a lump sum payment for non-economic loss suffered by a permanently impaired seriously injured worker.[23]
[17] Section 21(1).
[18] Section 21(2).
[19] Section 41 compared with s 39; see also s 47 and s 48(10).
[20] Section 33(21)(a).
[21] Sections 72, 73 and 75(7).
[22] Section 56.
[23] Section 58.
Importantly, various provisions of the Act other than s 21, which determine entitlements on the basis of degrees of WPI, provide that the assessment of impairment is to be conducted in accordance with Part 2, Division 5 of the Act. These include the provisions relating to lump sum payments for economic loss[24] which are only available where the worker’s degree of WPI from a physical injury (not including noise induced hearing loss) is five per cent or more, but less than 30 per cent; the provisions relating to the lump sum payments for non‑economic loss[25] which turn, in part, on the degree of WPI from a physical injury, which must equal or exceed five per cent; and the provisions permitting common law claims against an employer[26] which are available only where the degree of permanent impairment is at least 30 per cent.[27]
[24] Part 4, Division 6.
[25] Part 4, Division 7.
[26] Part 5.
[27] Section 72(1).
Division 5 of Part 2 consists solely of s 22. Section 22 sets out a scheme for assessing the degree of impairment (being WPI) that applies to a work injury that results in permanent impairment.
This consideration of the scheme reveals the central importance of s 22 to the Act. It is found within Part 2 of the Act which enshrines its key principles, concepts and requirements. It provides for an assessment of the degree of permanent impairment (being WPI). The assessment must be made by an accredited medical practitioner in accordance with Guidelines published by the Minister. Certain requirements for the Guidelines are prescribed. The Minister is required to consult the professional associations of accredited medical practitioners before publishing or amending the Guidelines. An assessment must not be made until there is evidence that the injury has stabilised and must be based on the worker’s current impairment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury. Section 22 prescribes principles that must be followed in undertaking the assessment.[28] They are:
(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.
[28] Section 22(8).
Only one assessment may be made in respect of the degree of permanent impairment of a worker from one 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 or impairment is made will not be assessed). An assessment (or parts of an assessment) may be undertaken by more than one accredited medical practitioner, and their assessments combined so as to create one assessment. Section 22 provides for a scheme of accreditation of medical practitioners.
There was no equivalent provision to s 21 in the 1986 Act. The 1986 Act had no equivalent test for entitlement for seriously injured workers. However, it did make provision in s 43 for lump sum compensation for non-economic loss for disabilities resulting in permanent impairment. An entitlement did not arise if the worker’s degree of permanent impairment was less than five per cent.[29] Any degree of impairment was to be assessed in accordance with s 43A and the WorkCover Guidelines published under that section.[30] The equivalent provision in the Act is s 58. There are comparable provisions in s 58 of the Act to s 43 of the 1986 Act. Section 43 was considered by the Full Court in Marrone. As the Corporation seeks to rely upon the Full Court’s reasoning in Marrone, I set out the relevant provisions of s 43 of the 1986 Act as they were at the time Mr Marrone suffered his compensable disability in 2009.[31] They are:
[29] Section 43(4) of the 1986 Act.
[30] Section 43(10) and (12) of the 1986 Act.
[31] By Amending Act No. 48 of 2011, which commenced operation on 1 July 2012, “disability” and “disabilities” in s 43 were amended to “injury” and “injuries”.
(1)Subject to this Act, if a worker suffers a compensable disability 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 disabilities arising from the same trauma—
(a)the disabilities may together be treated as 1 disability 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 disabilities in excess of the prescribed sum.
(7)If—
(a)a compensable disability consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior compensable disability; 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 disability 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 disability is the amount applying under that subsection at the time of the occurrence of that disability; 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.
It can be seen that, by comparison, s 58(1) of the Act corresponds to s 43(1) of the 1986 Act; s 58(2) corresponds to s 43(4); s 58(3) corresponds to s 43(5); s 58(4) corresponds to s 43(2); s 58(5) corresponds to s 43(3); s 58(6) corresponds to s 43(6); s 58(7) corresponds to s 43(7); s 58(8) corresponds to s 43(10); and s 58(11) corresponds to s 43(11).
Significantly, there was no equivalent provision in s 43 of the 1986 Act to s 58(9) of the Act which provides that only one claim may be made for lump sum compensation for non-economic loss in respect of any impairment or impairments that result from one 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).
In the 1986 Act, s 43A also set out a scheme for assessing the degree of impairment that applied to a compensable disability that resulted in permanent impairment. Section 43A had some similarities with s 22 of the Act. Like s 22, it required an assessment by an accredited medical practitioner in accordance with WorkCover Guidelines published by the Minister. Certain requirements for the WorkCover Guidelines were prescribed that are similar to the requirements in s 22. Provision was made for a scheme of accreditation of medical practitioners. The Minister was required to consult with the AMA before publishing or amending the WorkCover Guidelines. An assessment was to be made after the disability had stabilised and was 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 disability. Section 43A also prescribed principles that had to be followed in undertaking the assessment. They were:
(a)if a worker presents for assessment in relation to disabilities which occurred on different dates, the impairments are to be assessed chronologically by date of disability;
(b)impairments from unrelated disabilities or causes are to be disregarded in making an assessment; and
(c)assessments are to comply with any other requirements specified by the WorkCover Guidelines or prescribed by regulation.
It can be seen that s 22 prescribes additional principles to be followed in undertaking an assessment that were not found in s 43A of the 1986 Act. Importantly, s 43A did not provide that 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 relevant guidelines).[32] It did not provide that impairment resulting from physical injury is to be assessed separately to impairment resulting from psychiatric injury.[33] It did not provide that, in assessing impairment resulting from physical injury or psychiatric injury, no regard is to be had to impairment that results from consequential mental harm.[34] It did not provide that, 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.[35] It did not provide 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 relevant guidelines.[36] I will come back to these differences when I consider the reasons in Marrone.
[32] Section 22(8)(c).
[33] Section 22(8)(d).
[34] Section 22(8)(e).
[35] Section 22(8)(f).
[36] Section 22(8)(g).
The principal tension in the Act for the purposes of this appeal is between the provisions in s 22(8)(c) and s 58(6). In Project Blue Sky Inc v Australian Broadcasting Authority[37] McHugh, Gummow, Kirby and Hayne JJ said:[38]
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 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.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
[Citations omitted].
[37] [1998] HCA 28, (1998) 194 CLR 355.
[38] [1998] HCA 28 at [70]-[71], (1998) 194 CLR 355 at 381-382.
These provisions can be reconciled so that the Act functions in an harmonious and coherent fashion by recognising the different work each performs. Section 22(8)(c) requires that, under the Act, in assessing the degree of WPI, 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 Guidelines). Section 58(6)(a) provides that for the purposes of assessing an entitlement to lump sum compensation for non‑economic loss, where a worker suffers two or more injuries arising from the same trauma, the injuries may together be treated as one injury to the extent set out in the Impairment Assessment Guidelines (assessed together using any combination or other principle set out in the Guidelines).
It can be seen that, pursuant to s 58(8), in determining a worker’s entitlement to compensation for non-economic loss by way of a lump sum, the degree of the worker’s permanent impairment is to be assessed in accordance with s 22. The principles relevant to that assessment are generally prescribed in s 22(8). Section 22(8)(c) prescribes the approach to be taken in assessing impairments from the same injury or cause. That principle is reinforced by the terms of s 22(8)(b) which provides that in undertaking an assessment of WPI, impairments from unrelated injuries or causes are to be disregarded. The implication in s 22(8)(b) is that in undertaking an assessment of the degree of WPI regard is to be had to impairments from related injuries or causes. Accordingly, s 22(8)(c) prescribes the approach to be adopted in assessing impairments from the same injury or cause. By way of contrast s 58(6)(a) prescribes the approach to be taken in determining an entitlement to lump sum compensation for non-economic loss where a worker suffers two or more injuries arising from the same trauma. “Trauma” is defined in s 4(1) of the Act to mean an event, or series of events, out of which a work injury arises. “Impairments” and “injury” are related but distinct concepts. “Impairment” is a condition which results from an “injury”. I have set out the definition of “injury” earlier in these reasons.
In Military Rehabilitation and Compensation Commission v May[39] the High Court considered the meaning of “injury” in the context of the Safety, Rehabilitation and Compensation Act 1998 (Cth) (the Cth Act), which is defined in similar but not identical terms to the definition in the Act. Significantly, the definition in either Act adopts the primary or ordinary meaning of the term. In their joint reasons, French CJ, Kiefel, Nettle and Gordon JJ cited with approval[40] the explanation given by Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska[41] that if “something… can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an “injury” in the primary sense of that word”. The plurality said:[42]
That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee. It may be, for example, the breaking of a limb, the breaking of an artery, the detachment of a piece of the lining of an artery, the rupture of an arterial wall or a lesion to the brain. Each would be described as an “injury” in the primary sense.
However, as the Full Court correctly held, “suddenness” is not necessary for there to be an “injury” in the primary sense. A physiological change might be “sudden and ascertainable”. A physiological change might be “dramatic”. The employee’s condition might be a “disturbance of the normal physiological state”.
That an “injury” in the primary sense can arise, and can be described, in a variety of ways does not mean that “suddenness” is irrelevant. As the Full Court said, “suddenness” is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.
That an “injury” in the primary sense can arise, and be described, in a variety of ways was recognised by Gleeson CJ and Kirby J in Kennedy Cleaning when their Honours stated:
“[C]onsideration [must] be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word.” (Emphasis added.)
[Citations omitted].
[39] [2016] HCA 19, (2016) 257 CLR 468.
[40] [2016] HCA 19 at [45], (2016) 257 CLR 468 at 480.
[41] [2000] HCA 45 at [39], (2000) 200 CLR 286 at 300.
[42] [2016] HCA 19 at [46]-[48], (2016) 257 CLR 468 at 480-481.

In separate reasons Gageler J agreed with the plurality and said:[43]
More than a century of teasing out the ordinary sense in which injury is used in the context of workers compensation legislation has shown that suffering an injury is not confined to “getting hurt” (an injury might be constituted by nothing more than “something going wrong within the human frame itself, such as the straining of a muscle or the breaking of a blood vessel”) but that suffering an injury involves something more than merely “becoming sick”. 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.
…
The understanding of an injury as a definite or distinct physiological change or disturbance was first expounded in cases in which catastrophic consequences of pre-existing medical conditions came to be recognised as capable of constituting injuries. The exposition has remained particularly useful in cases within that category. The analysis undertaken in those cases has always looked beyond mere alterations of physical or mental functioning of the mind or body to the identification of the physiological happenings which have resulted in those alterations: destruction of tissue, collapse of vertebrae, rupture of blood vessels, occlusion of an artery, development of a lesion. The point of explaining an injury in terms of a definite or distinct physiological change or disturbance has been to highlight the necessity for such an analysis to be undertaken.
The need to identify some underlying physiological occurrence to justify the finding of a physical injury is perhaps best illustrated by the reasoning of the majority in Zickar v MGH Plastic Industries Pty Ltd, which concerned a worker who collapsed at work after the rupture of a congenital cerebral aneurism. Having said that “[i]f there was no rupture there would be no event answering the description of personal injury”, Toohey, McHugh and Gummow JJ added “[b]ut there was such an event and the presence of a disease does not preclude reliance upon that event as personal injury”. Together with Kirby J, their Honours concluded that the rupture itself was properly characterised as an injury in the normal sense.
[Citations omitted].
[43] [2016] HCA 19 at [75], [78]-[79], (2016) 257 CLR 468 at 486-488.
I accept that on its face there appears to be some blurring of the distinction between “injury” and “impairment” given that the definition of “injury” in the Act includes reference to “impairment”. But that definition is conditioned by the opening words of s 4(1) of the Act, namely, “Unless the contrary intention appears”. I consider there is a contrary intention to be found in s 22 and s 58. In the case of s 22 and s 58, I consider it is clear that “injury” and “impairment” are used in the different sense I have explained. To construe these provisions by reference to the definition of injury would be circular. In these provisions there is a distinction between causes and consequences. That construction is reinforced by the reference in s 22(8)(c) to “the same injury or cause”. That expression should be construed ejusdem generis. The words “injury” and “cause” convey a related concept which is concerned with the thing or event from which an impairment results, but they are not necessarily identical otherwise there would have been no need for the Parliament to refer to a “cause”. The relevant “cause” is the cause of the impairments. This construction is also reinforced by consideration of the terms of s 22(8)(d), (e) and (f) all of which refer to “impairment” resulting from physical or psychiatric injury. It is unnecessary for the purposes of the disposition of this appeal to consider the full extent of the meaning of this term.
However, the causal test propounded in s 22(8)(c) can be demonstrated by way of illustration where a worker suffers an injury to her right knee at work which causes her to favour that leg with the result that the added pressure on the left knee causes injury to that knee. The worker suffers two separate impairments: one to each leg. Those impairments can be said to be from the same injury or cause, namely, the injury to the right knee. But even if the impairment to the left leg is not from the injury to the right knee, the impairment of the left leg can be said to have been caused by the injury to the right knee.
Further, in the context of this case, when considering the “cause” of any impairment resulting from the provision of surgical or medical treatment for a work injury, regard should be had to the provisions of s 22(7)(b). That impairment resulting from medical or surgical treatment of a work injury is to be treated as being from the same cause as the work injury is the necessary implication of the terms of s 22(7)(b).
If the Tribunal finds as a matter of fact that a worker suffers more than one impairment from the same injury or cause, those impairments are to be assessed together or combined to determine the degree of impairment of the worker in accordance with s 22(8)(c).
Where a worker brings a claim for lump sum compensation for non-economic loss pursuant to s 58 (or a claim for loss of future earning capacity pursuant to s 56) and the Tribunal finds that the worker has suffered two or more work injuries arising from the same trauma, those injuries may be treated as a single injury to the extent set out in the Impairment Assessment Guidelines and assessed together using any combination or other principles set out in the Guidelines.
That is an approach required in conducting lump sum assessments under either s 56 or s 58 and is a separate statutory injunction from the requirement of s 22(8)(c).
In my view the Full Bench was correct in identifying s 22 as being the leading and dominant provision in relation to undertaking assessments of whole person impairment under the Act. So much is apparent from the structure of the Act and the inclusion of s 22 in Part 2, the opening words of s 56(1) and s 58(1) and the terms of s 56(7) and s 58(8).
Section 58 cannot be construed as providing the only basis upon which the assessment of WPI can occur by combination or assessment together. Section 22(8)(c) requires the assessment together or combination of impairments from the same injury or cause in determining, inter alia, a claim pursuant to s 58. As s 58(8) makes clear, the assessment of the worker’s WPI for the purposes of determining his or her entitlement to compensation pursuant to s 58 is to be undertaken in accordance with s 22.
This construction is not undermined by the terms of s 22(10) which is mirrored by the terms of s 58(9) and s 56(8). These are provisions of limitation. They apply to a prescribed category of assessments, namely, assessments of impairment from one or more injuries which arise from the same trauma. They provide that where a worker suffers permanent impairment from one or more injuries (including consequential injuries) arising from the same trauma, there is only one assessment of WPI to be made. That has the consequence that once the assessment has been undertaken if any injury subsequently develops or manifests itself after the assessment of WPI has been made, there will be no further assessment of WPI in respect of that subsequently developed or manifested injury. But this provision of limitation operates only in respect of impairments from one or more injuries that arise from the same trauma. It does not apply to assessments of impairments from more than one injury which do not arise from the same trauma. The operation of s 22(10) is not inconsistent with the construction I have given to the operation of s 22(8)(c) or s 58(6). It is not a provision which affects the textual analysis of s 22(8)(c). Section 22(10), s 56(8) and s 58(9) address a different subject from s 22(8)(c).
Further, I do not consider that the reasoning adopted in Marrone compels a different construction. Marrone considered the proper construction of the expression “arising from the same trauma” in s 43(6) of the 1986 Act. At the relevant time, “trauma” was defined in the 1986 Act to mean an event, or a series of events, out of which a compensable disability arose. The question was whether two discrete compensable disabilities arose out of the same series of events, within the meaning of that statutory term, if one or more events in that series were common, but not the exclusive, causes of both injuries. At the time s 43(6) was in comparable terms to s 58(6) of the Act. The relevant difference was that instead of the expression “work injuries”, s 43(6) referred at that time to “compensable disabilities”, and “injury” and “injuries” were referred to as “disability” and “disabilities”. White J, with whom Sulan J agreed, held that s 43(6) was confined in its operation to the circumstance 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 had no application to traumas suffered successively. White J distinguished the meaning to be attributed to the expression “rights arising from the same trauma” in s 54(5) and (7)(b) of the 1986 Act. His Honour referred to a series of authorities on the meaning of that provision and said:[44]
The application of the reasoning of Manser v Spry by this Court in Wardleworth v Green, Beckwith and, to a lesser extent, Hillier, in relation to s 54(5) and (7)(b), suggests that “rights” will arise from the same trauma if a disability in respect of which damages are paid, and in respect of which compensation could have been paid, had a common cause, even though other causes were disparate events. That supports the construction for which Mr Marrone contended.
In my opinion, the reasoning in Wardleworth, Beckwith and Hillier is not decisive of the proper construction of s 43(6). Section 54(7)(b) refers to “rights” arising from the same trauma as gave rise to the “rights” to compensation, whereas s 43(6) refers to “compensable disabilities” arising from the same trauma. The emphasis in the former is on the legal entitlement and the bundle of circumstances giving rise to it, whereas in the latter it is on a physical occurrence. There is a close relationship between the two because it could be said that the existence of the right is dependent on the happening of the occurrence. However, the difference in wording reflects the different subject matter of the two provisions and perhaps a difference in emphasis.
It also appears that the expression “compensable disabilities” may not be used in s 43(6) with exactly the same meaning as in s 54(5), to which s 54(7) gives effect. Section 54(5) uses the term “disability” in the sense of “injury”. The subject matter of s 43, on the other hand, is permanent impairments resulting from compensable disabilities (see subss (1) to (4) and (10)). It is the impairments, and not the disabilities causing them, for which the lump sum compensation is payable. In this context, s 43(6) seems to use 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. It is true that s 43(1) distinguishes the compensable disability, on the one hand, and the resulting impairment, on the other, but the distinction does not seem to be maintained in subs (6). The disabilities to which it refers seem to be injuries in the sense of impairments. The same was true of the counterpart provision in the 1971 Act as s 69 of that Act used the word “injury” to describe the impairments in the table for which compensation was payable. The reference in s 43(9)(a) to the prescribed sum to be applied with respect to a particular “disability” seems to be a similar usage of the term “disability”.
[44] [2013] SASCFC 67 at [88]-[90], (2013) 116 SASR 501 at 520-521.
White J concluded that the opening words of s 43(6), namely, “if a worker suffers two or more compensable disabilities arising from the same trauma”, should be understood as referring to a worker who suffers two or more compensable disabilities arising from one and the same trauma.
In separate reasons Kourakis CJ came to the conclusion that the opening words of s 43(6) must be understood to mean that for it to apply, two or more impairments had to arise out of the same series and all of the events in the series must have operated as a cause of those impairments.[45]
[45] [2013] SASCFC 67 at [28], (2013) 116 SASR 501 at 508.
The reasons in Marrone must be considered in the very different statutory context of the Act. An important feature of that different statutory context is the enactment of s 22. In enacting s 22 the legislature included in s (8)(c), (8)(d), (8)(e), (8)(f) and (8)(g), (10), (11), (12), (13), (14), (15) and (18), provisions that were not in the repealed s 43A. Unlike s 43A, s 22 is not merely facultative. It is a provision critical to the operation of the statutory scheme. It governs the approach to assessing the degree of a worker’s WPI. For the reasons explained earlier, this is a central feature of the scheme of compensation established by the Act which formed no part of the 1986 Act. The enactment of s 22 evinces a legislative intention to distinguish between injury and impairment such that s 22(8)(c) is addressing a different, if related, subject matter from s 58(6). The distinction is between cause and effect. In that context, the terms of s 58(6) are significant. Section 58(6) addresses the situation where a worker suffers two or more injuries arising from the same trauma. The significance is the change from the concept of compensable disabilities found in s 43 of the 1986 Act, which the Court in Marrone treated as being synonymous with “impairments”. In these circumstances that construction, adopted in Marrone, can no longer be sustained in relation to s 58(6).
For the purposes of undertaking a lump sum assessment pursuant to s 58, if a worker suffers two or more work injuries which arise from the same event or series of events, those injuries may be treated as a single injury to the extent set out in the Guidelines. In addition, in undertaking an assessment of the degree of WPI pursuant to s 58, impairments from the same injury or cause are to be assessed together or combined to determine the degree of impairment using any principle set out in the Guidelines. That is the clear statutory injunction in s 58(8).
For these reasons I do not accept the construction adopted by the Full Bench that for the purposes of making an assessment under s 22, multiple impairments from the same injury or cause, are to be assessed together or combined, but in connection with an assessment of non-economic loss under s 58, they are only combined if they arise from the same trauma.
Section 7(6)
In my view it is unnecessary to address the arguments based on s 7(6). Section 7(6) provides:
Any injury attributable to surgery or other treatment or service performed with due care and skill by a person professing to have particular skills and undertaken or provided while attending at a place referred to in subsection (5)(e) will be taken to constitute part of the original work injury.
At first instance the parties took the approach that s 7(6) had no application to the facts of this case. The Full Bench did not deal with the issue. The worker did not seek to rely upon its operation on the appeal to this Court. Mr Roder SC, counsel for the worker, without expressly invoking its provisions as a basis upon which the Court should dismiss the appeal, submits that the parties erred in adopting the position before the judge that the provision had no application. Nonetheless, he contends that application of the provision would lead to the dismissal of the appeal. Mr Livesey QC, counsel for the Corporation, submits that the worker cannot rely upon it in the absence of a notice of alternate contentions. In any event he submits that s 7(6) does not avail the worker. He submits it has a narrow and limited purpose, namely, to ensure that income maintenance entitlements for incapacity following surgery or other medical treatment are calculated as if the treatment was provided on the day that the injury, for which the treatment was provided, occurred.[46] The Court did not hear full argument in relation to the operation of s 7(6). Consideration of the application of s 7(6) is unnecessary for the disposition of the appeal. Accordingly, I would leave consideration of the meaning and extent of the provision to another occasion.
[46] Relying on reasons of this Court in Return to Work Corporation of SA v Watkins [2017] SASCFC 149 at [4] and [37].
Disposition of the appeal
The judge at first instance found that the worker’s left shoulder injury and his neck injury did not arise from the same trauma and therefore those impairments should not be combined for the purposes of undertaking the assessment pursuant to s 58. The Full Bench came to the contrary conclusion. The Full Bench’s conclusion that the neck injury and the left shoulder injury arose from the same trauma is infected by error. For the reasons given above, the question of whether the worker is entitled to have those impairments assessed together or in combination to determine the degree of impairment depends either on whether the worker has suffered two work injuries arising from the same trauma[47] or whether the worker’s impairments are from the same injury or cause.[48] That latter issue was not considered by the Full Bench given the approach it took.
[47] Section 58(6).
[48] Section 22(8)(c).
In the circumstances I consider that the appeal should be allowed and the matter remitted to a single presidential member of the Tribunal to determine that factual question in light of these reasons.
I also adopt the observations made by the Chief Justice in his reasons.
PARKER J: I agree with the reasons of Stanley J and the orders he proposes.