Schinckel v Return to Work Corporation of South Australia - [2023] SASCA 32

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
SCHINCKEL v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2023] SASCA 32
Judgment of the Court of Appeal
(The Honourable Justice Bleby, the Honourable Justice David and the Honourable Auxiliary Justice Mazza)
30 March 2023
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - GENERALLY
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - INJURY, DISEASE OR DISABILITY - WHAT CONSTITUTES INJURY
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - JURISDICTION OF COURTS, TRIBUNALS, COMMISSIONS AND BOARDS
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - QUESTION OF LAW
Application for leave to appeal on a question of law from a decision of the Full Bench of the South Australian Employment Tribunal.
The applicant was, at all relevant times, employed as a veterinarian surgeon, working in the southeast of South Australia. He suffers from bilateral wrist scapholunate ligament injuries with secondary arthritis. He contended at trial that these conditions were caused or aggravated by his work as a veterinarian, in particular his work conducting pregnancy tests on cows. This involved inserting his extended arm into a cow’s rectum to conduct an internal examination of the cow’s uterus.
The applicant initially used his dominant, right hand to conduct the tests, but he subsequently learnt to use his left arm. He preferred this as the internal layout of the cow made it easier.
The applicant first experienced pain in his left wrist in around 2008 or 2009. By the end of 2009, he mentioned his pain to his general practitioner (‘GP’). The applicant suffered further injuries, which he contended were due to his work as a veterinarian surgeon, until his retirement on 31 July 2020. He made four claims for financial compensation under the Return to Work Act 2014 (SA) (‘RTWA’), all of which were rejected.
The trial judge found the left wrist injury suffered by the applicant to be work-caused. Following submissions by parties, the judge delivered a second judgment determining the dates of the injuries. He found that by the time the applicant saw his GP on 1 December 2009, his capacity to sell his labour as a veterinary surgeon performing pregnancy tests had been diminished. The judge concluded that the applicant suffered an injury to his left wrist of gradual onset, which was deemed to have occurred on 1 December 2009, pursuant to s 113 of the repealed Workers Rehabilitation and Compensation Act 1986 (SA) (‘WRCA’).
On appeal to the Full Bench, the applicant contended that the date of injury to the left wrist was 24 April 2018, being the date of surgery, on the basis that the date was required to be determined pursuant to s 188 of the RTWA, as qualified by s 4(11) and having regard to the transitional provisions in cl 29 of sch 9.
The Full Bench dismissed the appeal by majority. Calligeros DPJ held that while it was an error to have applied s 113 of the WRCA, the finding that the applicant first became incapacitated for work on 1 December 2009, was a finding of fact which was open to make on the evidence. Rossi DPJ considered it was reasonably open for the trial judge to have applied s 113(1) of the WRCA in determining the date of injury, but held that it was not necessary to reach a concluded view. He held that even if it was an error to rely on s 113(1), that did not of itself amount to an appealable error, in that the date of injury was, in any event, 1 December 2009.
The substantive issue between the parties on appeal from the decision of the Full Bench was the date, or deemed date, of the left wrist injury. Counsel framed the question of law raised in the following terms:
•Was the tribunal required to determine the applicant’s deemed date of left wrist injury pursuant to s 188(1) and s 4(11) of the RTWA by applying the statutory definition of partial incapacity pursuant to ss 4(10) and 36 of the RTWA?

Held (by the Court), granting leave to appeal, allowing the appeal and remitting the matter to the Full Bench of the South Australian Employment Tribunal:
1.The answer to the question of law raised on the appeal is ‘yes’.
2.Section 188(1), as qualified by s 4(11), governed the fixing of the date of injury to the applicant’s left wrist. It did so by means of the transitional provision in cl 29(2) of sch 9 to the RTWA.
3.The applicant is burdened with an order, made contrary to law, that the date of injury to the left wrist was 1 December 2009. The dismissal of the appeal by the Full Bench, by majority, occurred through two different processes of reasoning, both of which were tainted by error. A grant of leave to appeal is required in the interests of justice.

Return to Work Act 2014 (SA) ss 4, 7, 22, 36, 39, 40-44, 56, 58, 188; sch 9, cl 29; South Australian Employment Tribunal Act 2014 (SA) ss 26I, 68; Workers Rehabilitation and Compensation Act (SA) s 113, referred to.
Kimber v Chief Executive, Department of Treasury and Finance, for Chief Executive, Department for Health and Wellbeing (SA Ambulance Service) [2021] SASCA 133; Mills v Return to Work Corporation [2019] SASC 56; Schinckel v Return to Work Corporation of South Australia [2021] SAET 32; Schinckel v Return to Work Corporation of South Australia (No 2) [2021] SAET 96; Schinckel v Return to Work Corporation of South Australia [2022] SAET 43, considered.

SCHINCKEL v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2023] SASCA 32
Court of Appeal – Civil: Bleby and David JJA and Mazza AJA

THE COURT: This is an application for leave to appeal on a question of law from a decision of the Full Bench of the South Australian Employment Tribunal. The applicant suffered a left wrist injury, which the trial judge found to be work‑caused. The substantive issue now between the parties is the date, or deemed date, of that injury. Counsel at the hearing of the appeal framed the question of law in the following terms:
Was the tribunal required to determine the applicant’s deemed date of left wrist injury pursuant to s 188(1) and s 4(11) of the Return to Work Act2014 (SA) (‘RTWA’) by applying the statutory definition of partial incapacity pursuant to ss 4(10) and 36 of the RTWA?
The answer to this question is ‘yes’. Further, the applicant has established that the disposition of the appeal by the Full Bench was affected by error. However, the history of this matter is complex. It is necessary to traverse that history in some detail, in order to explain how the question of law arises and to determine whether this is an appropriate case for a grant of leave.
Background
The applicant was, at all relevant times, employed as a veterinarian surgeon, working in the southeast of South Australia. He suffers from bilateral wrist scapholunate ligament injuries with secondary arthritis. He contended at trial that these conditions were caused or aggravated by his work as a veterinarian, in particular his work conducting pregnancy tests on cows.
The respondent contended at trial that these conditions were a consequence of a congenital or constitutional predisposition to progressive wrist ligament failure and secondary arthritis. It contended that the applicant’s pregnancy testing of cows resulted only in a temporary exacerbation or aggravation of symptoms related to the arthritis.
The fact that this was the issue joined at trial is relevant to the disposition of this appeal. The appeal being on a question of law, as was the appeal to the Full Bench, it is first necessary to identify the factual findings made by the trial judge. This is of particular importance in the present case, as one of the complaints on appeal is that in dismissing the appeal from the single judge, one member of the majority of the Full Bench made findings of fact that were not open on an appeal on a question of law.
The trial judge accepted the applicant’s evidence, which was to the following effect. The applicant started working as a veterinarian for the Kingston Veterinarian Clinic in 1990. A significant portion of his work involved conducting pregnancy tests on cows. This involved inserting his extended arm into a cow’s rectum to conduct an internal examination of the cow’s uterus.
The applicant initially used his dominant, right hand to conduct the tests, but he subsequently learnt to use his left arm. He preferred this as the internal layout of the cow made it easier.
The applicant conducted about 25,000 pregnancy tests on average each year, usually between the months of August and February. Over the course of his professional life, he conducted over 750,000 tests, sometimes as many as 840 in a day. He usually conducted them in a cattle crush, which is a strongly built narrow metal corridor, or in a cattle race. A cow would be coaxed into the crush or race. It would be released on completion and replaced with another. The trial judge described the work as ‘plainly fast paced, repetitive work’.[1] He accepted the applicant’s evidence that inserting his arm into the rectum of a cow involved considerable effort and considerable forces, especially when the cow resisted. He further accepted that the gates of the crush were often heavy, difficult to manoeuvre and would often jar the applicant’s hands and wrists.[2]
[1] [2021] SAET 32 at [10].
[2] [2021] SAET 32 at [69].
The applicant’s evidence, which the judge accepted, was that he first experienced pain in his left wrist in around 2008 or 2009, but it may have been earlier. By the end of 2009, he mentioned his pain to his general practitioner, Dr Kalei. Records of the Limestone Coast Health Unit show that the applicant attended the clinic on 1 December 2009 and complained of a painful left wrist.
The applicant was referred to an orthopaedic surgeon, Dr Saies, who first saw him on 1 February 2010. In response to a question from Dr Saies, the applicant said that he had hurt his left wrist playing football in the 1980s. He had strapped his wrist when playing and taken pain killers. Dr Saies prescribed anti‑inflammatories and told him to try using his right arm, to give his left arm a rest. The applicant followed this advice. By 2011, he began experiencing symptoms in his right wrist.
In 2013, the applicant had both wrists x-rayed. The images showed advanced scapholunate collapse with associated arthritis. He was offered and accepted cortisone injections in both wrists, which provided temporary relief. Dr Saies recommended surgery, as did Dr Sood, whom the applicant saw for a second opinion.
The applicant began using an ultrasound probe at work instead of manual testing but found this uncomfortable. He frequently reverted to conducting pregnancy testing in the traditional way.
In September 2017, the applicant returned to Dr Saies and explained that the pain in both wrists was becoming progressively worse. Dr Saies again recommended surgery in the form of partial or total wrist fusions. The applicant resisted surgery for a time. He began using his right arm to rest his left.
On 11 January 2018, the applicant hurt his left wrist when performing a pregnancy test. The cow moved during the procedure, resulting in the applicant injuring his left elbow and feeling increased pain in his left wrist. Dr Saies recorded that he saw the applicant on 13 January 2018. Because of his increased pain, the applicant decided to proceed with surgery to his left wrist.
The claims and application for review
On 28 February 2018, the applicant made a claim for financial compensation under the RTWA, on the basis that his wrist pain was work related. The claim identified chronic left wrist pain, secondary scapula collapse and early arthritic joint arthritis. Relevantly for the consideration of the progression of the matter in the Tribunal, the Injury Notification Summary by the claims agent, Employers Mutual Limited (‘EML’), records the date of injury as 1 January 2009.
The applicant had surgery on 24 April 2018. Following surgery, he had to wear a cast on his left arm and took a few months off work. He resumed work on 11 July 2018 with modified duties, before resuming full time hours on 11 August 2018. He resumed pregnancy testing within a few weeks, initially using his right arm. Consequently, the pain in his right wrist increased.
On 23 August 2018, EML rejected the claim on the basis that it was not satisfied that the claimed injury had arisen out of or in the course of the applicant’s employment, or that the applicant’s employment was a significant contributing cause of the claimed injury.
On 5 September 2018, the applicant filed an application for review in the Tribunal.
On 7 June 2019, the applicant made a claim for compensation on account of the pain in his right wrist. The claim asserted that the cause of the injury was the result of ‘prolonged periods of repetitive natured heavy, physical work’, which caused a progression of a degenerative condition in 2013 and onwards and was further aggravated due to his left wrist injury in 2017/18 and surgery. EML rejected the claim.
On the same day as making this claim in respect of his right wrist, the applicant made a further claim in relation to his left wrist. The trial judge identified the injury claimed as being to his left wrist, due to increased demands at the end of 2017 involving prolonged periods of repetitive natured heavy, physical work as well as an injury on 11 January 2018 while pregnancy testing cows. The claim identified the dates of injury as November 2017 and 11 January 2018. It was rejected.
On 11 June 2019, the applicant made a further claim, seeking pre-approval for the cost of surgery for his right wrist and further surgery for his left wrist. That claim was also rejected.
There were therefore four rejected claims in total before the Tribunal.
The first decision on the application for review
As identified above, the issue at trial was whether these conditions were caused or aggravated by the applicant’s work as a veterinarian, in particular his work conducting pregnancy tests on cows. The parties led competing evidence on the question of whether the applicant’s bilateral wrist osteoarthritis arose from his employment. It is not necessary to traverse that evidence. Relevantly for present purposes, the trial judge concluded:[3]
Having reflected upon all of the evidence given in this case, I think it is more probable than not that Mr Schinckel’s work as a veterinarian, and in particular his pregnancy testing of cows, significantly contributed to the progression of his bilateral wrist scapholunate ligament injuries with secondary arthritis and I so find.
… I find that but for work contribution, Mr Schinckel’s wrists would not be as arthritic as they currently are. On balance, I think it likely that the work contribution hastened the need to past surgery, and has accelerated the need for future surgery.
[3] [2021] SAET 32 at [81]-[82].
The judge then turned to the issue of dates of injury. He concluded his reasons with the following observation:[4]
Clearly these were injuries that developed gradually. Findings as to the date of the occurrence of the injuries might be important. Section 113 of the Workers Rehabilitation and Compensation Act 1986 (the old Act) and s 188 of the current Act rely upon a deeming provision to artificially fix the date of injury that develops gradually by reference to the commencement of incapacity. It is not inconceivable that these are old Act injuries. Even if these are current Act injuries, I am not sure that the fixing of the date of injuries is as straightforward as [counsel for the applicant] suggested.
[4] [2021] SAET 32 at [84].
The judge therefore arranged to hear further submissions as to the dates of the injuries, following which he delivered a judgment determining the dates of the injuries (‘the second decision’).[5]
[5] [2021] SAET 96.
Determining the date of injury to the left wrist
The question of law raised on the present appeal is concerned only with the trial judge’s finding, in the second decision, that the deemed date of injury to the left wrist was 1 December 2009. The second decision is best approached by first having regard to the legislative framework relevant to the determination of dates of injury and the approaches taken by the parties as to the date of injury to the left wrist.
The statutory framework
As the trial judge observed, fixing a date of injury can be important for a number of reasons. Section 39(3) of the RTWA limits the entitlements of non‑seriously injured workers to weekly payments to a maximum of 104 weeks ‘from the date on which the incapacity for work first occurs’. The first day of incapacity also has significance when fixing the date of a gradually developing injury.
Section 4(10) of the RTWA defines ‘incapacity’:
(10)   For the purposes of this Act –
(a)     total incapacity for work is the incapacity for work that is represented by a worker having no current work capacity within the meaning of this Act; and
(b)     partial incapacity for work is the incapacity for work that is represented by a worker having a current work capacity within the meaning of this Act.
Section 36 then addresses the concept of current work capacity:
36—Capacity to perform work
(1) For the purposes of this Act, the current work capacity of a worker is constituted by a present inability arising from a work injury such that the worker is not able to return to his or her employment at the time of the occurrence of the injury but is able to return to work in suitable employment.
(2) For the purposes of this Act, a worker has no current work capacity if the worker has a present inability arising from a work injury such that the worker is not able to return to work, either in his or her employment at the time of the occurrence of the injury or in suitable employment.
In the case of a gradually developing injury, s 188(1) of the RTWA deems the date of injury to align with the commencement of total or partial incapacity:
(1)An injury (not being noise induced hearing loss) that develops gradually or is a disease will be taken to have occurred when the worker first becomes totally or partially incapacitated for work by the injury.
Section 188(1) is in the same terms as s 113(1) of Workers Rehabilitation and Compensation Act 1986 (SA) (‘WRCA’). However, unlike s 113(1) of the WRCA, s 188(1) is qualified by s 4(11) of the RTWA:
(11)For the purposes of this Act, the date on which an incapacity for work first occurs will be taken to be the first day in respect of which the worker has an entitlement to a payment under Part 4 Division 4 Subdivision 2 on account of that incapacity.
Part 4 Division 4 Subdivision 2, comprising ss 39–44, governs entitlement to weekly payments. Staying with the situation of non-seriously injured workers by way of example, s 39(1)(a) provides:
39—Weekly payments over designated periods for workers other than seriously injured workers
(1) Subject to this Act, if a worker, other than a seriously injured worker, suffers a work injury that results in incapacity for work, the worker is entitled to weekly payments in respect of that incapacity in accordance with the following principles:
(a)if any period of incapacity for work occurs within the period of 52 weeks from the date on which the incapacity for work first occurs (the first designated period)—
(i)for any period during the first designated period when the worker has no current work capacity—the worker is entitled to weekly payments equal to the worker's notional weekly earnings; and
(ii)for any period during the first designated period when the worker has a current work capacity—the worker is entitled to weekly payments equal to the difference between the worker's notional weekly earnings and the worker's designated weekly earnings;

Thus, having regard to the entitlement in s 39(1)(b)(ii), s 4(11) operates to fix the date of incapacity not simply to where a relevant incapacity has first been identified, but to where s 39(1)(b)(ii) has operated to first provide for an entitlement to weekly payments. It is that date on which s 188(1) then operates, in the case of a gradually developing injury, to fix the date of injury.
As the applicant submitted, the RTWA by this means contemplates, in the case of a gradually developing injury, the existence of a work caused injury where there is no present entitlement to weekly payments. It seeks to avoid a situation where a worker is deprived of any right to weekly payments by suffering a work‑caused injury of gradual onset, where they are able to continue to work without reduced capacity for a period following the identified commencement of development of the injury. That period might exceed 104 weeks.
In the present case, s 188(1), as qualified by s 4(11), governed the fixing of the date of injury to the applicant’s left wrist. It did so by means of the transitional provision in cl 29(2) of sch 9 to the RTWA. Clause 29 provides:
29—General provision
(1)     Subject to the other provisions of this Part, this Act applies to and in relation to—
(a)an injury that is attributable to a trauma that occurred before the designated day and that is a compensable injury under the repealed Act (an existing injury); and
(b)an injury that is attributable to a trauma that occurred on or after the designated day (a new injury).
(2)     For the purposes of subclause (1), an injury that is partially attributable to a trauma that occurred before the designated day and partially attributable to a trauma that occurred on or after the designated day will be taken to be a new injury within the ambit of subclause (1)(b).
(3)     Subject to the other provisions of this Part—
(a)a reference in this Act to a work injury will be taken to include a reference to a compensable injury under the repealed Act; and
(b)this Act will apply to a compensable injury under the repealed Act as if this Act had been in operation before the injury occurred.
(4)     Nothing in this Part is intended to give rise to an entitlement under this Act and the repealed Act so as to give rise to double entitlements.
The significance of this observation for present purposes is that s 113 of the WRCA, which was not qualified by an equivalent provision to s 4(11), did not apply.
The approach taken by the parties to the dates of injury to the left wrist
The reasons given by EML on 23 August 2018 for rejecting liability recorded that the applicant had stated that the injury occurred on 1 January 2009. However, the reasons go on to record:
A deemed date of injury was set as 01/01/2009 based on the date of injury listed on the Work Capacity Certificate.
This appears to refer to a Work Capacity Certificate completed by the applicant’s general practitioner, Dr Kalei, on 20 February 2018. This document contained a pro-forma passage which, as filled out by Dr Kalei, reads:
I examined you on 20/02/2018 for injury(s)/condition(s) you stated occurred/developed on [blank]/[blank]/2009.
An Injury Notification Summary by EML dated 29 February 2018 records a telephone conversation with the principal of the veterinary practice. The Date of Injury is recorded as 1 January 2009. An Injury Notification Summary by EML dated 6 March 2018 then records a telephone conversation with the applicant. This contains greater detail and again records the Date of Injury as 1 January 2009.
It is apparent from the reasons for the rejection by EML that the date of 1 January 2009 was a deemed date of injury.
In his Application for Review filed on 5 September 2018, in the field reading ‘Date of injury – or when you first became aware of the injury’, the answer is recorded: ‘Early 2018’. Obviously enough, this is substantially later than the deemed date of injury of 1 January 2009 recorded by EML.
The applicant disputed that the date of injury was 1 January 2009. He submitted before the trial judge that by reference to s 188 of the RTWA, the date of injury to the left wrist was 24 April 2018, being the date of the surgery, following which he suffered a partial or complete incapacity for work. He further submitted that there was no evidence of partial or complete incapacity for work prior to the date of the surgery.
The second decision on the application for review
On 14 May 2021, the trial judge published the second decision, determining the dates of injuries. He referred to the provision for fixing the date of injury in s 113 of the WRCA, and then noted that s 188 of the RTWA was in the same terms, but subject to the deeming provision in s 4(11). He also identified the transitional provisions in cl 29 of sch 9.
The judge accurately summarised the applicant’s submission that by operation of ss 188 and 4(11), and cl 29, the date of injury to the left wrist was 24 April 2018. He summarised the respondent’s argument that, having regard to the findings in the first decision that a series of micro traumas had significantly contributed to the progression of the applicant’s bilateral wrist scapholunate ligament injuries with secondary arthritis, he should find that the left wrist injury occurred in 2009.
On the left wrist injury, the judge reasoned and found as follows:[6]
Mr Schinckel said that he noticed pain in his left wrist in around 2008 or 2009 or perhaps earlier. He associated this with performing pregnancy tests and said that the pain had gotten progressively worse and that he had lost a range of motion in his wrist. He said that he consulted with his general practitioner, Dr Kalei, at the end of 2009. A report from Dr Kalei records that Mr Schinckel presented with left wrist pain on 1 December 2009 and that he referred Mr Schinckel to Dr Saies. At this time Mr Schinckel was regularly performing pregnancy testing using his left arm. He said that Dr Saies told him that he should try alternating arms when pregnancy testing cows so that he could rest his left wrist when it was particularly sore and that he acted on that advice. I think it is reasonable to infer that by the time he saw Dr Kalei on 1 December 2009, his capacity to sell his labour as a veterinary surgeon performing pregnancy tests had been diminished. I find that this was the date when he first became partially incapacitated for work on account of his left wrist injury. Pursuant to s 113 of the WR&C Act this is the deemed date of this injury.
(Footnotes omitted; emphasis added)
[6] [2021] SAET 96 at [22].
With respect to the further claims in respect of the left wrist, the judge found as follows. He held that the traumatic event the applicant suffered on 11 January 2018 was no more than a temporary aggravation. He concluded that it was much more likely that it was the generalised increase in pain that led him to proceed with surgery to his left wrist in 2018, rather than the one-off incident on 11 January 2018.[7]
[7] [2021] SAET 96 at [29].
With respect to the surgery on 24 April 2018, the judge held that the surgery was conducted with due care and skill by a person professing to have particular skills. He therefore held, with reference to s 7(6), that the surgery was a compensable injury, forming part of the original work injury.
Following the surgery on 24 April 2018, the applicant resumed work on modified duties on 11 July 2018. He had resumed full time hours by 10 August 2018 and continued to do so despite increasing pain and loss of strength in his hands. He was burnt out, physically and mentally. He retired on 31 July 2020. The judge concluded that his continued work as a veterinarian from 10 August 2018 caused an increase in the symptoms in his left and right wrists over the period up to his retirement. He found that the reduction in tasks that the applicant was able to perform following his return to work after the 2018 surgery was significant, being a new and different incapacity for work. He determined that pursuant to ss 4(11) and 188 of the RTWA, the deemed date of injury was 31 July 2020, being the date on which an incapacity for work on account of this aggravation first occurred.
The judge concluded:[8]
In summary, I find that Mr Schinckel suffered an injury to his left wrist of gradual onset, which is deemed to have occurred on 1 December 2009. I find that Mr Schinckel suffered a traumatic injury to his left wrist on 11 January 2018 that resulted in a temporary aggravation. I find that he suffered a surgical injury to his left wrist on 24 April 2018 and that the surgery was the result of the left wrist injury that was deemed to have occurred on 1 December 2009. I find that Mr Schinckel suffered an aggravation of injuries to his left wrist and right wrist that were of gradual onset that are deemed to have occurred on 31 July 2020.
(Emphasis added)
[8] [2021] SAET 96 at [39].
Orders
The judge made the following orders on 29 June 2021:
With the consent of both parties I make the following orders:
1.     The applicant sustained an injury to his left wrist on 1 December 2009 (scapholunate collapse and arthritic condition).
2.     The applicant sustained an aggravation of his left wrist injury on 11 January 2018 which was temporary aggravation.
3.     The applicant sustained an injury to his left wrist from surgery on 24 April 2018 which by reason of s7(6) has a date of injury 1 December 2009.
4.    The costs associated with the surgery for the applicant's left wrist injury on 24 April 2018 were reasonably incurred given the surgery constituted a therapeutic appliance.
5. The applicant sustained an aggravation of his left wrist injury from 10 Aug 2018 to 31 July 2020 with a deemed date of injury of 31 July 2020 per s.188 RTWA.
6. The applicant sustained an injury to his right wrist from 10 August 2018 to 31 July 2020 with a deemed date of injury of 31 July 2020 per s.188 RTWA.
7.     The applicant has an entitlement to weekly payments from 31 July 2020 in relation to the injuries referred to in paras 5 and 6 and reasonably incurred medical expenses.
8.     The issues are expanded pursuant to section 69 of the SAET Act for a claim for income support and medical expenses.
9.     Costs and disbursements to be agreed.
The decision of the Full Bench
On appeal to the Full Bench, the applicant complained that the trial judge had erred in:
·failing to apply cl 29(2) of Schedule 9 to the RTWA;
·finding that the applicant first became partially incapacitated for work on account of his left wrist injury on 1 December 2009, when there was no evidence to support that finding;
·applying s 113 of the WRCA to deem the date of injury to the left wrist as having occurred on 1 December 2009; and
·failing to apply s 188 of the RTWA and deeming the date of the left wrist injury to have occurred on 24 April 2018.
The Full Bench dismissed the appeal by majority. It is necessary to bear in mind, when considering the various approaches of the members of the Full Bench, that this appeal was limited to a question of law,[9] as is the appeal to this Court. That is a jurisdictional limit. Neither the Full Bench on an appeal under s 26I of the South Australian Employment Tribunal Act 2014 (SA), nor this Court under s 68 of that Act, is empowered to make findings of fact. In Kimber v Chief Executive, Department of Treasury and Finance,[10] this Court explained the importance of articulating precisely the question of law raised on such an appeal.
[9] South Australian Employment Tribunal Act 2014 (SA), s 26I.
[10] [2021] SASCA 133 at [21]-[43].
It is a common practice not to articulate the question of law raised on an appeal that is limited in this way, and simply to complain of an error of law in some respect or another. This failure is regrettable. As this Court explained in Kimber, these are not the same things. The practice risks obscuring any question of law properly raised or, worse, pursuing a complaint that invites the tribunal to exceed its jurisdiction. In this Court, the applicant articulated the question of law properly raised on the Notice of Appeal, on the invitation of this Court, towards the end of his submissions. The fact that this question of law was apparently not articulated before the Full Bench may have affected the approach taken by two of its members.
Calligeros DPJ
Calligeros DPJ held that the finding that the applicant first became incapacitated for work on 1 December 2009, was a finding of fact which was open to make on the evidence. In this regard, he observed:[11]
The first finding made in paragraph [39] is that Mr Schinckel first became incapacitated for work on 1 December 2009. The finding was based on a consultation with Dr Saies on 1 February 2010. Mr Schinckel described a prior left wrist injury playing football. He also described having increased symptoms in his left wrist when conducting rectal examinations at work. Dr Saies prescribed anti-inflammatory medication. Mr Schinckel started using his right arm and hand to conduct the examinations and experience symptoms in his right wrist in 2011. The first finding is a finding of fact which was open to make on the evidence. The first claim for compensation made by Mr Schinckel was for a left wrist injury which occurred in 2009. The Judge found that the injury asserted by or on behalf of Mr Schinckel had occurred. If that result was no longer sought, the claim should have been withdrawn and conceded prior to judgment.
(Footnote omitted; emphases added)
[11] [2022] SAET 43 at [8].
Calligeros DPJ cited the Injury Notification Summary of EML dated 27 January 2018 in support of the proposition that the claim was for an injury that occurred in 2009. However, as discussed above, this appears to have been a deemed date recorded by EML. Moreover, as set out above, the applicant was clear before the primary judge that he disputed that the date of injury was in 2009. We respectfully disagree with Calligeros DPJ’s criticism of the conduct of the proceedings before the trial judge.
Next, as set out above, the first finding the trial judge made at paragraph [39] was that the applicant suffered an injury to his left wrist which was deemed to have occurred on 1 December 2009. The trial judge reached this conclusion by application of s 113 of the WRCA. For the reasons set out above, this was in error: cl 29 of Schedule 9 to the RTWA rendered ss 188 and 4(11) the applicable provisions.
Calligeros DPJ accepted that this was an error. However, he held that the error was of no consequence:[12]
Section 188(1) of the RTW Act is identical to s 113(1) of the repealed Act and cl 29(1)(a) of Schedule 9 to Part 10 of the RTW Act provides that the RTW Act applies to compensable injuries sustained under the repealed Act.
[12] [2022] SAET 43 at [9].
Calligeros DPJ then considered the effect of s 4(11). He considered that on the facts, which he described as unusual, the combination of ss 188(1) and 4(11) notionally entitled the applicant to two years of weekly payments from 9 December 2009. However, no claim for lost earnings had been advanced in respect of that period. Had it been advanced, the delay in making the claim would have been fatal.
The difficulty with this conclusion is that, as the respondent accepted, there was no evidence supporting the inference that the applicant’s capacity to sell his labour as a veterinary surgeon performing pregnancy tests had been diminished as at 1 December 2009.[13] That is, there was no evidence that he had a partial incapacity from that date, based on the definition of ‘current work capacity’ within the meaning of s 4(10).
[13] Contra, [2021] SAET 96 at [22].
The parties described the absence of evidence differently. The applicant submitted that the evidence was that he continued pregnancy testing cows, without absences from work, until the surgery on 24 April 2018. He submitted that the evidence supported a finding that a statutory incapacity arose from 24 April 2018, referring to the following finding by the trial judge in the first decision:[14]
Following the surgery, Mr Schinckel wore a cast on his left arm and he had a few months off work. He resumed work on 11 July 2018 on modified duties. He resumed full time hours on 11 August 2018. Within a few weeks of that he resumed pregnancy testing, initially using his right arm.
[14] [2021] SAET 32 at [20].
The respondent submitted that there was an absence of evidence directed to the first day of the incapacity to the left wrist that gave the applicant an entitlement to weekly payments. This caused an insuperable barrier to the identification of any date of injury. That is, there was no basis to make a finding that the date of injury was 24 April 2018.
It is not possible, and it would not be appropriate, for this Court to attempt to resolve the question of the date of injury. To do so would be to traverse outside of the jurisdictional bounds of this appeal on a question of law. For present purposes, it is sufficient to conclude that Calligeros DPJ erred in holding that it was of no consequence that the trial judge determined the date of injury to the left wrist by application of s 113 of the WRCA, rather than s 188 and 4(11) of the RTWA. The latter test required a finding as to the date on which the applicant sustained an incapacity for work within the meaning of s 4(10), being the date on which he had an entitlement to a payment under Part 4 Division 4 Subdivision 2 on account of that incapacity. The finding that the date was 1 December 2009 was not open.
Rossi DPJ
Rossi DPJ considered it was reasonably open for the trial judge to have applied s 113(1) of the WRCA in determining the date of injury, but held that it was not necessary to reach a concluded view.[15] He further held that even if it was an error to rely on s 113(1), that did not of itself amount to an appealable error, in that the date of injury was, in any event, 1 December 2009.[16]
[15] [2022] SAET 43 at [118].
[16] [2022] SAET 43 at [123]-[124].
The basis of this conclusion was his finding that the evidence demonstrated that on the last day of work leading to the consultation 1 December 2009, the applicant had suffered a loss, deterioration or impairment of a limb which necessitated attendance on the general practitioner, referral to the orthopaedic surgeon and the prescription of medication. That is, the evidence established a physiological change.[17] He held that in the absence of any challenge to the reasonableness of the treatment, the medical expenses were reasonably incurred in consequence of the applicant having suffered a work injury on the last day of work prior to 1 December 2009. He concluded in this regard:[18]
In the circumstances, there was no need to have regard to a deeming provision in determining whether Mr Schinckel had an entitlement to recover the cost of medical expenses for the injury that he sustained at that time. To the extent that the trial judge suggested a need to apply a deeming provision to ascertain a date of injury, I am unable to agree.
[17] [2022] SAET 43 at [119].
[18] [2022] SAET 43 at [121].
The difficulty with this reasoning is that it relies on findings of fact that the trial judge did not make. They are findings of fact by Rossi DPJ. The trial judge applied the deeming provision. On an appeal limited to a question of law, for the reasons explained above, it was not open for the Full Bench to make a finding, on the basis of the evidence before the trial judge, that the date of injury was 1 December 2009. This finding exceeded the jurisdiction of the Full Bench on an appeal on a question of law.
Lieschke DP
Lieschke DP dissented. He held that the judge erred in not applying cl 29(2) to the medical evidence that he accepted, of a progressive condition contributed to by trauma both before and following the commencement of the RTWA. He held, correctly, that the judge was required to apply s 188 of the RTWA. He went further, however, and concluded that on an application of that provision, the date of the left wrist injury was 24 April 2018, being the first day of an entitlement to income support under Part 4, Division 4, Subdivision 2 of the RTWA.

This conclusion reflected the argument of the applicant before the Full Bench and on appeal to this Court. The difficulty again, however, as the respondent pointed out, is that it was not for the Full Bench to make a finding as to the date of injury to the left wrist. Whether the evidence was sufficient to sustain a finding that the date of injury was 24 April 2018 was contentious. The finding that this was the date of injury exceeded the jurisdiction of the Full Bench on an appeal on a question of law.
Conclusion on the question of law raised on appeal
As identified at the outset of these reasons, the answer to the question of law raised on the appeal is ‘yes’. Whether leave to appeal should be granted raises different considerations.
The application for leave to appeal
The respondent opposed a grant of leave. It is fair to say that this opposition became more qualified during the course of the hearing of the appeal. Nonetheless, it is necessary to address the question of leave.
The basis of the opposition to leave relied, first, on the proposition that the appeal would not resolve any present dispute between the parties, in that there is no outstanding claim lodged for weekly payments, or for medical expenses that has been unresolved. On that basis, there was no need to make a declaratory-style order as to the date of injury. Indeed, this appeal cannot result in a finding of a date of injury.
The respondent submitted that the apparent motivation for the appeal is for the applicant to be in a better position on a potential later whole person impairment assessment for the purpose of lump sum compensation under s 56 or s 58. It submitted that this appeal would not assist that goal. It has offered to preserve each party’s position concerning the whole person impairment. In this regard, by way of further observation following his conclusion that the appeal should be dismissed, Rossi DPJ said:[19]
Ultimately, Mr Schinckel has failed to identify how the making of the orders would result in a resolution of a controversy between the parties about a legal right or legal liability. In the circumstances, the jurisdiction of the Full Bench has not been demonstrated to have been invoked in accordance with accepted principle.
(Footnote omitted)
[19] [2022] SAET 43 at [134].
This observation is not, with respect, entirely consistent with Rossi DPJ’s determination of the appeal. In any event, the respondent here invoked this passage simply by way of example.
The offer made by the respondent to preserve the parties’ position is that there be a notation made to the trial judge’s orders, by consent, as a means of finalising the appeal, in the following terms:
A. The orders made by the learned Deputy President and this acknowledgement are without prejudice to Mr Schinckel’s right, in the event of permanent impairment assessment, to assert that the date of injury for the purpose of a permanent impairment assessment is different from that contained in these orders.
B. The orders made by the learned [Deputy] President and this acknowledgement are without prejudice to RTW’s right, in the event of a permanent impairment assessment, to assert that there is to be a deduction fort a pre-existing impairment under either s 22(8)(b) or s 22(8)(g) of the RTW Act.
The applicant has not accepted this offer. His position is that there is no mechanism by which the parties could enter into an arrangement binding the Tribunal in a matter permitting him to assert a different date of injury from that contained in the orders. The notation would also require the applicant to circumvent the factual findings of the trial judge. What is required, in the applicant’s submission, is the capacity for a fresh hearing to determine the date of the injury.
As to the question of utility of the appeal, the applicant submitted that the respondent’s submissions misapprehended his position. As he described it, the importance of the appeal is to prevent an injustice if the present orders were to continue to stand. He identified two reasons for this.
First, with the dates of the left wrist injury identified, his ability to pursue future entitlements have been defined. His appeal to the Full Bench being unsuccessful, the orders of the trial judge have crystallised his entitlement to non‑economic loss and his ability to seek compensation for future economic loss. As things stand, he is precluded from claiming future economic loss from impairment arising from the injuries found to have occurred on 1 December 2009 and the surgery on 24 April 2018, when he comes to be assessed for whole person impairment.
Secondly, he submitted that a successful appeal would entitle him to weekly payments for the period of incapacity following the 24 April 2018 surgery.
The second reason can be put to one side. The applicant sought at one stage to amend his Notice of Appeal to seek an order that he has an entitlement to weekly payments from 24 April 2018. For the reasons given above, it would not appropriate for this Court to make a finding of the date of injury to the left wrist. In the event, the applicant appropriately did not press that application.
As to the first reason, the spectre of the hypothetical has always been present, in the sense that the proceedings have not addressed whether any monetary entitlement should flow. The original proceedings were concerned with the question of causation. The judge then invited further submissions on the findings he should make as to the dates of the injuries. Senior counsel for the respondent on this appeal acknowledged that he could not give an assurance that the respondent was ‘blame free’ in the proceedings taking the course they took.
For better or worse, the proceedings before the trial judge crystallised a date of injury for the left wrist. There is nothing to suggest that objection was taken to the effect that this was a hypothetical exercise. The applicant’s submission that the exercise was not purely hypothetical, in that it crystallised a condition for a further step in the proceedings, has some force. In any event, without determining that issue, we are not persuaded that this would be a persuasive consideration against a grant of leave, given the history of the proceedings.
The respondent also observed that generally, leave to appeal will not be granted unless the question of law raised is one of wider importance, concerns conflicting authority, or it is otherwise in the interests of justice that it be considered.[20] It is a fair observation that the question of law raised on this appeal concerns only the correct provision to be applied in determining the date of injury to the applicant’s left wrist. That does not raise a question of wider importance. However, it remains the case that the applicant is burdened with an order, made contrary to law, that the date of injury to the left wrist was 1 December 2009.
[20] Mills v Return to Work Corporation [2019] SASC 56 at [21] (Hinton J).
The dismissal of the appeal by the Full Bench, by majority, occurred through two different processes of reasoning. We have found that both were tainted by error. One of these depended on reasoning that extended to findings of fact, in excess of the jurisdiction of the Full Bench on an appeal confined to a question of law, as did the dissenting decision.
In the circumstances of the history of this matter, this is an appropriate case for this Court to grant leave to appeal on the ground that it is required in the interests of justice. To its credit, the respondent was at pains to emphasise that it had no desire to take advantage of the error, hence the open offer. However, we are not satisfied that this would protect the interests of the applicant. We grant leave to appeal.
Draft orders of the parties
Following oral argument, the parties provided written submissions concerning appropriate orders for the disposition of the appeal on the assumption that leave would be granted. The respondent submitted the following draft orders:
1. Leave to appeal be granted.
2. The appeal be allowed.
3. Order 1 made by the Full Bench of the South Australian Employment Tribunal on 5 May 2022 be set aside.
4. The matter be remitted to the Full Bench of the South Australian Employment Tribunal for the purpose of the entry of orders setting aside orders 1 to 3 and 5 to 7 made by Gilchrist DPJ on 29 June 2021.
5. In respect of the costs of appeal, within 7 days of the making of these orders the parties are to file submissions of not more than 3 pages together with any evidence in respect of the issue of costs.
The applicant agreed with proposed orders 1, 2, 3 and 5. He agreed that the matter should be remitted to the Full Bench to set aside orders 1, 2, 3 and 5 made by the trial judge on 29 June 2021. He submitted that the orders should also facilitate remittal to the trial judge to redetermine the date of the left wrist injury and the applicant’s entitlements.
As to proposed order 4, the applicant submitted that order 6 made by the trial judge on 29 June 2021 concerns the right wrist injury, which was not subject to the appeal to the Full Bench or to this Court. He submitted that order 6 should be left undisturbed to that extent. In the same vein, he submitted that order 7 made by the trial judge on 29 June 2021 should be set aside only to the extent that it concerns the left wrist, but otherwise left as is.
The history of this matter renders problematic the approach that this Court should take with respect to the orders relating to the dates of injuries. The respondent submitted, consistently with its attitude to the question of leave, that the Tribunal’s findings were only hypothetical and failed to accord with the approach that should have been taken under the RTWA. It is to be recalled that the original proceedings challenged the determination that the injuries were not work caused. However, it does not appear that the respondent argued before the trial judge that the judge should not have proceeded to determine the dates of the injuries.
Moreover, this is an appeal on a question of law in the terms already identified. The finding of the date of injury to the right wrist was not challenged on appeal by any party. It cannot be disturbed by the determination of this appeal. This Court should not interfere with the orders relating to the right wrist.
It appears that the respondent’s view of the proper scope of the proceedings has evolved since the trial. It also appears that the parties are now in dispute about whether the Tribunal’s jurisdiction with respect to any claim for entitlements has been engaged. However, notwithstanding the respondent’s (present) criticism that the issue of the dates of injuries is hypothetical, it took the position that leave to appeal should be refused.
This Court has granted leave to appeal and determined a question of law on the basis that the interests of justice required answering the question and setting aside the determination of the date of the left wrist injury. Ultimately, however, there appears to be a dispute about whether the Tribunal would have jurisdiction to redetermine the date of injury on a remittal. That question is not before this Court on the appeal on the identified question of law.
It is necessary, then, to fashion an order that gives effect to the determination of the question of law, but which does not invite further error. The parties previously acquiesced in the trial judge determining the dates of the injuries. The respondent now disputes whether that course was correct and whether it can continue to be pursued. The appropriate course now would be for the parties to have the opportunity to make submissions to the trial judge as to the scope of the proceedings following the appeal. It is for the Tribunal to determine its own jurisdiction in the first instance.
In those circumstances, the matter should be remitted to the trial judge to determine the scope and appropriate course of the proceedings following the successful appeal. We propose to make the following orders:
1.Leave to appeal is granted.
2.The appeal is allowed.
3.Order 1 made by the Full Bench of the South Australian Employment Tribunal on 5 May 2022 is set aside.
4.The matter is remitted to the Full Bench of the South Australian Employment Tribunal for the purpose of:
4.a.the entry of orders setting aside the following orders made by Gilchrist DPJ on 29 June 2021: orders 1 to 3, 5 and that part of order 7 incorporating reference to paragraph 5 of the orders of Gilchrist DPJ; and
4.b.facilitating the remittal of the matter to the trial judge to determine the remaining jurisdiction of the Tribunal on the application and to exercise that jurisdiction according to law.
5.In respect of the costs of appeal, within 7 days of the making of these orders, the parties are to file submissions of not more than 3 pages together with any evidence in respect of the issue of costs.