Return to Work (SA) v Opie
[2020] SASC 201
•16 October 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Permission to Appeal in Private)
RETURN TO WORK (SA) v OPIE
[2020] SASC 201
Judgment of The Honourable Justice Livesey
16 October 2020
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE - EMPLOYMENT SUBSTANTIAL OR SIGNIFICANT CONTRIBUTING FACTOR - OTHER MATTERS
Application for permission to appeal a decision of the Full Bench of the South Australian Employment Tribunal (SAET) to the Full Court of the Supreme Court.
On 1 November 2017 a Deputy President of the SAET determined that the respondent had a whole person impairment of nine per cent for the purposes of compensation for non economic loss pursuant to ss 22 and 58 of the Return to Work Act 2014 (SA) (the Act). The respondent appealed to the Full Bench and, on 21 April 2020, it allowed the appeal and determined that the worker had a whole person impairment assessment of 24 per cent under s 22 of the Act.
The Return to Work Corporation appeals to this Court on the grounds that the Full Bench erred in law with respect to its construction of s 22 of the Act.
Held, granting permission to appeal; the appeal is reasonably arguable and raises a matter of some importance.
Return to Work Act 2014 (SA) s 3, s 22, s 58; South Australian Employment Tribunal Act 2014 (SA) s 68; Supreme Court Civil Rules 2006 (SA) r 289; Uniform Civil Rules 2020 (SA) r 212.5, r 213.2, r 213.6, referred to.
Alcoa Holdings Ltd v Lowthian [2011] VSC 245; Department of Health and Ageing v Neilson [2017] SAET 136; Frkic v Return to Work SA [2020] SAET 16; Frkic v Return to Work SA [2020] SASC 42; Frkic v Return to Work SA (No 2) [2020] SASCFC 59; Khan v Return to Work SA [2019] SASCFC 150; Mangano v Return to Work SA [2017] SAET 40; Opie v Return to Work SA [2017] SAET 138; Opie v Return to Work SA [2020] SAET 180; Opie v Return to Work SA [2020] SAET 62, considered.
RETURN TO WORK (SA) v OPIE
[2020] SASC 201Civil: Permission to Appeal in Private
LIVESEY J:
Introduction
By notice of appeal dated 11 May 2020, the applicant seeks permission to appeal pursuant to s 68 of the South Australian Employment Tribunal Act 2014 (SA) and rule 289(1) of the Supreme Court Civil Rules 2006 (SA).
The resolution of the question of permission was delayed by applications considered by Doyle J on 12 June 2020. On that day his Honour ordered that further consideration of these proceedings be deferred pending finalisation of the matter before the Full Bench of the South Australian Employment Tribunal (SAET), but otherwise dismissed the applications.
A final decision was delivered by the Full Bench on 11 September 2020.[1]
[1] Opie v Return to Work SA [2020] SAET 180.
A preliminary matter
As a preliminary matter, the Uniform Civil Rules 2020 (SA) commenced operation on 18 May 2020 (the commencement date).
By rule 1.4(1)(a) the Uniform Civil Rules 2020 (SA) apply, unless the Court otherwise orders, to a proceeding commenced, and a step in a proceeding taken, on or after the commencement date.
As the notice of appeal was filed on 11 May 2020, the Uniform Civil Rules 2020 (SA) do not apply.
Where rules 213.2 and 213.6 of the Uniform Civil Rules 2020 (SA) do apply, little has changed regarding the requirements for seeking leave, formerly permission. The important difference concerns the orders that a Judge may make. By rule 212.5(2)(e) I may make an order granting leave to appeal or referring that question to the Full Court. By rule 212.5(3) a single Judge may not refuse leave to appeal or an extension of time to appeal. Leave to appeal can now only be refused by the Full Court.
Accordingly, under the Uniform Civil Rules 2020 (SA), in the event that I considered that there was some question or doubt about leave, the matter could not be decided by me and must be referred to the Full Court. Without having decided the question of leave, I would not be precluded from participating in any resulting Full Court decision on the question of leave to appeal.
The primary decision
On 1 November 2017, Ardlie DP determined that the worker had a 29 per cent whole person impairment from which there was to be a deduction of 20 per cent in respect of a pre‑existing condition, leaving a final whole person impairment of nine per cent for the purposes of compensation for non‑economic loss pursuant to ss 22 and 58 of the Return to Work Act 2014 (SA) (the Act).[2]
[2] Opie v Return to Work SA [2017] SAET 138 (Ardlie DP).
The Full Bench decision
The worker appealed to the Full Bench and, on 21 April 2020, it allowed the appeal and determined that the worker was entitled to a lump sum payment for non‑economic loss pursuant to s 58 based upon a whole person impairment assessment of 24 per cent under s 22 of the Act.[3]
[3] Opie v Return to Work SA [2020] SAET 62 (Rossi DPJ, with whom Calligeros DPJ and Cole DP agreed).
These vastly different outcomes are explained by the different approaches taken to the interpretation of s 22 of the Act.
In particular, there is controversy as to whether the methods of assessment prescribed by s 22(8)(b) and s 22(8)(g) can both apply to a case where it is necessary to assess the whole person impairment of a worker who has a pre‑existing impairment. Section 22(8) of the Act provides as follows:
(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.
The difference in approach to s 22(8)(b) and s 22(8)(g) is easily illustrated. Under the approach taken by the Deputy President to s 22(8)(g), the pre‑existing and new impairments are assessed together and then a deduction is made for the extent of the pre‑existing impairment. By contrast, under the approach taken by the Full Bench to s 22(8)(b), only the new impairment is assessed and it is unnecessary to make any deduction in respect of the pre‑existing impairment because the pre‑existing impairment has been “disregarded”.
The rationale for the approach taken by the Full Bench is that there exists more than one “equally valid, applicable method” of assessment. In that event, chapter 1.38 of the Impairment Assessment Guidelines (IAG or Guidelines) applies:
The Guidelines and AMA5 may specify more than one equally valid, applicable method that assessors can use to establish the degree of an injured person’s permanent impairment. In that case, assessors should use the method(s) that results in the highest degree of permanent impairment.
When taking this approach, reliance was placed by the Full Bench upon its earlier decision in Frkic.[4]
[4] Opie v Return to Work SA [2020] SAET 180, Frkic v Return to Work SA [2020] SAET 16.
Grounds of appeal
The applicant says that the Full Bench erred in law by:
(1)Finding that 22(8)(b) can be applied to the exclusion of s 22(8)(g) if that results in the highest degree of permanent impairment on the basis that chapter 1.38 of the IAG sanctions this; and
(2)Failing to apply s 22(8)(g) where a portion of an impairment is due to a pre‑existing injury that caused the worker to suffer an impairment before the work injury.
The applicant contends that the reference to chapter 1.38 by the Full Bench of the SAET in Frkic v Return to Work SA[5] was uncontroversial and, in fact, it is not authority for the proposition that chapter 1.38 resolves any “competition between the application of s 22(8)(b) and s 22(8)(g)”.
[5] Frkic v Return to Work SA [2020] SAET 16.
Disposition of the application for leave
Before the decision of the Full Bench in this case, permission to appeal from the decision of the Full Bench in Frkic had been refused.[6] However, after the decision of the Full Bench in this case, a Full Court of this Court granted permission to appeal in Frkic.[7] Permission was granted because the question of the proper construction of s 22(8) was of some importance.
[6] Frkic v Return to Work SA [2020] SASC 42 (Kourakis CJ).
[7] Frkic v Return to Work SA (No 2) [2020] SASCFC 59 (Stanley, Doyle and Livesey JJ). The matter was resolved and the appeal did not proceed.
Central to the decision of the Full Bench is the proposition that each of s 22(8)(b) and s 22(8)(g) are, in the circumstances of this case, “equally valid, applicable” methods of assessment. That is, at least arguably, contentious. There are decisions on these matters that do not appear to have been considered by the Full Bench.[8] As I said in Frkic v Return to Work SA:[9]
… the proper construction of, and interaction between, s 22(8)(b), s 22(8)(g) and the Guidelines, generally, raises matters of some importance to the operation of the scheme, potentially affecting the resolution of matters beyond this case.
… where the Act is intended only to compensate work injuries and impairments caused by work injuries,[10] how is that objective met by the provisions and Guidelines to which I have referred in the circumstances of this case?
[8] For example, and without attempting to be exhaustive, Alcoa Holdings Ltd v Lowthian [2011] VSC 245, [59]-[60] (Forrest J), Mangano v Return to Work SA [2017] SAET 40 and Department of Health and Ageing v Neilson [2017] SAET 136. The issue was not addressed in Khan v Return to Work SA [2019] SASCFC 150. It may well be argued that these decisions are not relevant, but that is a matter for the appeal.
[9] Frkic v Return to Work SA (No 2) [2020] SASCFC 59, [34]-[35] (Livesey J, with whom Doyle J agreed).
[10] See ss 3 and 22 of the Return to Work Act 2014 (SA).
The same may be said here. The appeal is reasonably arguable and raises a matter of some importance.
I grant permission to appeal.
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