Return to Work (SA) v Opie - [2020] SASC 201

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 201
Civil: 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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Return to Work (SA) v Opie and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] SASC 201
Decision Date: 16 October 2020

CaseChat Overview and Summary

The case of Return to Work (SA) v Opie involved a dispute over the entitlement of a worker to compensation for non-economic loss. The matter was heard by the Supreme Court of South Australia. The primary issue in this case was the correct method of assessing the whole person impairment of a worker who had a pre-existing condition. This was crucial in determining the worker's entitlement to a lump sum payment for non-economic loss under the Return to Work Act 2014 (SA).

The legal issues that the court had to decide centred on the interpretation of Section 22 of the Act. Specifically, the court needed to determine whether the methods of assessment prescribed by Section 22(8)(b) and Section 22(8)(g) could both apply in a case where it was necessary to assess the whole person impairment of a worker with a pre-existing condition. The court also needed to consider whether any portion of an impairment due to a previous injury should be deducted for the purposes of an assessment, subject to any contrary provisions in the Impairment Assessment Guidelines.

The court found that the Full Bench had allowed the appeal and correctly determined that the worker was entitled to a lump sum payment for non-economic loss based upon a whole person impairment assessment of 24 per cent. This was contrary to the primary decision which had assessed the worker's impairment at nine per cent. The court's reasoning was based on the interpretation of Section 22(8)(g) of the Act, which provided that any portion of an impairment that was due to a previous injury should be deducted for the purposes of an assessment. The court found that this provision should be applied in this case, leading to a higher assessment of the worker's whole person impairment.

The court did not grant leave to appeal, but noted that in the event of doubt about leave, the matter could be referred to the Full Court. The court's final orders were that the worker was entitled to a lump sum payment for non-economic loss based upon a whole person impairment assessment of 24 per cent.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.