Schroeder v Return to Work Corporation of South Australia

[2019] SASC 61

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Permission to Appeal)

SCHROEDER v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA

[2019] SASC 61

Judgment of The Honourable Justice Hinton

17 April 2019

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS

WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE

Application for permission to appeal against a decision of the Full Bench of the South Australian Employment Tribunal to the Full Court of the Supreme Court.

On 27 March 2012 the applicant suffered a compensable injury to his lower back. He received weekly payments for this injury under the Workers Rehabilitation and Compensation Act 1986 (SA) (WRCA). Upon the applicant’s return to work, his payments were discontinued. On 1 July 2015 the Return to Work Act 2014 (SA) (RTWA) came into operation replacing the WRCA. On 30 March 2016 the applicant underwent surgery for the injury to his back and, as a result of this surgery, suffered a further period of incapacity for work.

The applicant made three claims for compensation. The first claim was for weekly payments of compensation from 30 March 2016 with respect to the injury on 27 March 2012. The second and third claims were attributable to the injury subject of the first in that the second claim was the consequence of incapacity arising from the applicant’s injured back and the third after surgery to address that injury. Return to Work SA rejected the three claims. The matter proceeded to determination before a Deputy President in the South Australian Employment Tribunal who affirmed Return to Work SA’s decision.

The applicant appealed to the Full Bench on the basis that the Deputy President had misconstrued and/or misapplied the transitional provisions in the RTWA. The Full Bench rejected these contentions and affirmed the Deputy President’s decision.

The applicant seeks permission to appeal to the Full Court of the Supreme Court on the basis that the Full Bench misconstrued the RTWA in two respects: first, in determining that the designated period for weekly payments with respect to the injury being partially attributable to the trauma that occurred on 27 March 2012 and partially attributable to the trauma that occurred on 30 March 2016 (the “new injury”) expired 26 March 2014; and secondly, in determining that from 30 March 2016, the incapacity, and entitlement to weekly payments, be attributed wholly and exclusively to the new injury, such that the applicant had no entitlement to weekly payments with respect to the existing injury.

Held, allowing the application in part, permission to appeal is refused on the first proposed ground of appeal and is allowed on the second.

Return to Work Act 2014 (SA) ss 7(6), 39; Supreme Court Civil Rules 2006 (SA) r 291(4); Workers Rehabilitation and Compensation Act 1986 (SA) s 36, referred to.
Andrzejczak v Department for Education and Child Development [2017] SAET 183; Mills v Return to Work Corporation of South Australia [2019] SASC 56; Pennington v Return to Work SA [2016] SAET 21; Return to Work Corporation of South Australia v Watkins [2017] SASCFC 149; Schroeder v Return To Work SA [2018] SAET 168; Schroeder v RTWSA (Cobham Aviation Services Engineering Pty Ltd) [2017] SAET 59; Watkins v Return to Work SA [2017] SAET 8, considered.

SCHROEDER v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2019] SASC 61

Application

HINTON J:

1. This is an application for permission to appeal to the Full Court from a decision of the Full Bench of the South Australian Employment Tribunal.

2. The following chronology is central to understanding the arguments that Mr Schroeder would seek to advance.

   27 March 2012  Mr Schroeder suffered a compensable injury to his lower back for which he received weekly payments under the Workers Rehabilitation and Compensation Act 1986 (SA) (WRCA).

   10 May 2013 Upon his return to work Mr Schroeder’s weekly payments were discontinued under s 36(1)(c) WRCA.

   1 July 2015The Return to Work Act 2014 (SA) (RTWA) came into operation.

   30 March 2016          Mr Schroeder underwent surgery on his back.

3. After his surgery Mr Schroeder made three claims for compensation as follows:

   1.an undated claim for weekly payments of compensation from 30 March 2016 with respect to the injury on 27 March 2012 (the first claim);

   2.an undated claim for weekly payments of compensation on various dates preceding 30 June 2015 and as at 30 June 2015 with respect to the 2012 injury (the second claim);

   3.a claim dated 22 August 2016 for compensation due to incapacity following an alleged “new injury” resulting from the surgery on 30 March 2016 (the third claim).

4. The second and third claims were attributable to the injury subject of the first in that second claim was the consequence of incapacity arising from Mr Schroeder’s injured back and the third after surgery to address that injury.

5. The first claim was rejected by a determination dated 28 April 2016 on the basis that Mr Schroeder’s entitlement to weekly payments had ceased pursuant to s 36(1)(c) WRCA and that, accordingly, he was not entitled to further weekly payments pursuant to sch 9 cl 37(6) RTWA. The second claim was rejected by a determination dated 16 June 2016 on the same basis as the first. The third claim was rejected by a determination dated 13 September 2016 on the basis that the incapacity arose as a result of Mr Schroeder’s surgery and that under s 7(6) RTWA such injury was to be taken to constitute part of the original work injury. This being so his entitlement to weekly payments ceased on 27 March 2014.

6. Mr Schroeder instituted proceedings in the South Australian Employment Tribunal seeking judicial determination of each of his claims.

7. It may immediately be observed that Mr Schroeder’s claims were made after the coming into operation of the RTWA in relation to an injury and periods of incapacity that occurred before that date, in addition to periods of incapacity, including as a result of surgery, that occurred after that date.

8. In the Tribunal, Return to Work SA argued that Mr Schroeder’s case was on all fours with that of Watkins v Return to Work SA a decision of the Full Bench (Watkins FB).[1] In Watkins FB the Full Bench of the South Australian Employment Tribunal held that where a worker suffered a compensable injury that was partly attributable to a trauma occurring before the RTWA came into operation and partly attributable to surgery occurring after the RTWA came into operation, the injury was to be taken to be a new injury under sch 9 cl 29(1) RTWA by virtue of cl 29(2) RTWA with the consequence that any entitlement to compensation did not arise under sch 9 cl 37 but rather s 39 RTWA. In the present matter Farrell DPJ held:[2]

   I am satisfied in accordance with the full bench decision in Watkins v RTWSA and the transitional provisions that for the purposes of determining his entitlement to weekly payments that Mr Schroeder should be regarded as having a ‘new’ injury because his lower back condition is partially attributable to a trauma (the 2012 injury) that occurred before the designated day and partially attributable to a trauma that occurred on or after the designated day (the 2016 surgery).

   However the date of the ‘new’ injury is 27 March 2012 because the full bench decision in Watkins decided that the injury is to be treated as if the RTWA was in force before the original injury occurred. This means that the designated entitlement periods for weekly payments totalling 104 weeks under s 39 of the RTWA are deemed to commence from 27 March 2012 (and concluded on 26 March 2014). Mr Schroeder is therefore not able to claim weekly payments for any period longer than that which would have been applicable under s 39(3) of the RTWA had his original injury occurred on or after 1 July 2015.

   [footnotes omitted]

   [1]    [2017] SAET 8.

   [2]    Schroeder v RTWSA (Cobham Aviation Services Engineering Pty Ltd) [2017] SAET 59 at [33]-[34].

9. Farrell DPJ considered that Mr Schroeder’s position was “almost identical to the facts in Watkins”.[3]

   [3]    Schroeder v RTWSA (Cobham Aviation Services Engineering Pty Ltd) [2017] SAET 59 at [35].

10. Mr Schroeder appealed to the Full Bench. In the interim Ms Watkins appealed to the Full Court; Return to Work Corporation of South Australia v Watkins (Watkins FC).[4]

    [4] [2017] SASCFC 149.

11. Ms Watkins sustained an injury to her right arm on 4 December 2014. That injury was compensable under the WRCA. Ms Watkins received weekly payments for a time, but after she returned to full-time work those payments were discontinued under s 36 WRCA on 11 February 2015. Subsequently, on 31 August 2015, Ms Watkins had surgery on her arm due to persistent pain and discomfort that she was experiencing. From the date of her surgery until 21 September 2015 Ms Watkins was wholly incapacitated for work. She claimed weekly payments of income maintenance for the period 31 August 2015 to 21 September 2015. Return to Work SA rejected her claim.

12. It is unnecessary to say any more regarding the decisional history of the Watkins matter in the Tribunal and before the Full Bench. In the Full Court Stanley J, with whom Kourakis CJ and Nicholson J agreed, observed:[5]

    In enacting the RTW Act, the Parliament established a scheme, by way of the Transitional Provisions found in Part 10 of Schedule 9 to the RTW Act, to regulate which Act was to apply to injuries in circumstances where the Workers Rehabilitation and Compensation Act 1986 was repealed and the Return to Work Act 2014 commenced operation on 1 July 2015. The purpose of the Transitional Provisions is twofold. First, it determines which Act applies and, second, it regulates entitlements to compensation subsequent to the commencement of operation of the RTW Act where a worker’s antecedent rights to compensation were determined by the repealed Act.

    Clause 29 of the Transitional Provisions provides for the application of the RTW Act. However, its operation is made subject to the other provisions of Part 10 of Schedule 9 of the RTW Act. Clause 29(1) characterises an injury as an existing injury or a new injury. Whether an injury is categorised as an existing injury or a new injury depends upon whether the injury is attributable to a trauma that occurred before the designated day and is a compensable injury under the repealed Act, or whether it is attributable to a trauma that occurred on or after the designated day. Further, clause 29(2) provides that, for the purpose of categorising an injury as an existing injury or a new injury in sub-clause (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 is taken to be a new injury. However, whether an injury is an existing injury or a new injury, the RTW Act applies to and in relation to such injury. Consistent with that operation, clause 29(3) provides that a reference in the RTW Act to a work injury is to be taken to include a reference to a compensable injury under the repealed Act, and the RTW Act applies to a compensable injury under the repealed Act as if the RTW Act had been in operation before the compensable injury under the repealed Act occurred. Paradoxically, clause 30(1) provides that whether an existing injury is compensable will be determined pursuant to ss 30 and 30A of the repealed Act, notwithstanding that by reason of the operation of clause 29(3)(b) the RTW Act applies to a compensable injury under the repealed Act as if the RTW Act had been in operation before the injury occurred.

    In recognising the dichotomy created for the purposes of the operation of the Transitional Provisions between existing injury and new injury, the Transitional Provisions only make two further references to new injury. That reflects the predominant purpose of the Transitional Provisions which is to regulate the way in which the RTW Act applies to existing injury.

    [5]    Return to Work Corporation of South Australia v Watkins [2017] SASCFC 149 at [26]-[28].

13. I understand sch 9 cl 29(1) RTWA and the dichotomy to which Stanley J refers to have the effect of covering the field of compensable injuries. It also means that the source of all statutory rights and entitlements and obligations arising from and relating to a compensable injury, and indeed, whether an injury is compensable, are derived from the RTWA. That does not mean that the repealed Act ceases to have any part to play, merely that such part, as it has, is as picked up by the RTWA.

14. Stanley J went on:[6]

    As I have noted, the scheme of the RTW Act, including, in particular, the Transitional Provisions, first directs attention to whether the RTW Act applies to a particular injury. That issue is resolved by the factual finding of whether the worker has an injury that is:

    (i)attributable to a trauma that occurred before the designated day and that is a compensable injury under the repealed

    (ii)attributable to a trauma that occurred on or after the designated day; or

    (iii)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.

    If, as a matter of fact, the worker suffers an injury in one of these categories then, subject to the other provisions of Part 10 of Schedule 9, the RTW Act applies to and in relation to that injury. However, with one exception, the remaining provisions of Part 10 of Schedule 9 only apply to existing injury. Existing injury is confined to injury in category (i), i.e. an injury that is attributable to a trauma that occurred before the designated day and that is a compensable injury under the repealed Act. The remaining two categories of injury in categories (ii) and (iii) define new injury. In the dichotomy established by clause 29 of the Transitional Provisions, if as a matter of fact an injury is a new injury, the rights, duties and obligations attaching to a new injury are determined by the provisions of the substantive Act rather than the Transitional Provisions, apart from the one exception concerning rights of set off under ss 32A(8) and 50H of the repealed Act, which may be exercised in relation to a right to compensation under the RTW Act, including in relation to a right to compensation in respect of a new injury.

    [footnote omitted]

    [6]    Return to Work Corporation of South Australia v Watkins [2017] SASCFC 149 at [31]-[32].

15. Stanley J then proceeded to analyse sch 9 cl 37 RTWA. He held, in effect, that textually cl 37 only applied to existing injuries within the meaning of cl 29(1) RTWA.[7] By contrast, any right, entitlement or obligation arising from a new injury within the meaning of cl 29(1) RTWA, is provided for by the substantive RTWA.

    [7]    Return to Work Corporation of South Australia v Watkins [2017] SASCFC 149 at [33]-[34].

16. Next Stanley J analysed s 7(6) RTWA. 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.

17. Stanley J considered that, unlike sch 9 cl 29(1) RTWA, the purpose of s 7(6) was not to determine whether the RTWA applied to an injury.[8] Rather, s 7(6) determined the rights, entitlements and obligations attaching to an injury attributable to surgery or treatment or service performed with due care by a person professing to have particular skills upon a worker who had already sustained a compensable injury and consulted the professional for treatment in relation to that injury. Thus, cl 29 is engaged prior to s 7(6).[9]

    [8]    Return to Work Corporation of South Australia v Watkins [2017] SASCFC 149 at [37].

    [9]    Return to Work Corporation of South Australia v Watkins [2017] SASCFC 149 at [38].

18. Stanley J then turned to deal specifically with the question of whether Ms Watkins’ claim should have been accepted by Return to Work SA:[10]

    In this case, as a matter of fact, the relevant injury, being the surgical injury, was a new injury, either because it was an injury attributable to a trauma that occurred on or after the designated day, or was an injury 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. Accordingly, it fell within the terms of clause 29(1)(b) or clause 29(2). Because the injury is a new injury, two immediate consequences follow. First, the RTW Act applies to it. Second, clause 37(6) does not apply to it.

    As the RTW Act applies to it, s 7(6) applies, but the application of s 7(6) to the surgical injury, while operating in its terms, only means that the injury resulting from the surgery is taken to constitute part of the original work injury. That original work injury occurred on 4 December 2014, i.e. before the designated day. That fact is not an impediment to the application of the RTW Act which commenced operation on the designated day because, pursuant to clause 29(3)(b), the RTW Act applies to a compensable injury under the repealed Act as if the RTW Act had been in operation before the compensable injury under the repealed Act occurred.

    As clause 37(6) does not apply to the respondent’s surgical injury, her entitlement to weekly payments is to be determined pursuant to s 39(3) of the RTW Act. This means she is eligible to receive weekly payments of up to 104 weeks from 4 December 2014, being the date when her incapacity first occurred as a result of the work injury of the same date. Accordingly, the respondent is entitled to weekly payments of income maintenance for the period 31 August 2015 until 21 September 2015.

    [10]   Return to Work Corporation of South Australia v Watkins [2017] SASCFC 149 at [40]-[42].

19. As an injury attributable to surgery undertaken in relation to a work injury is taken to constitute part of the original work injury, the first and second designated periods during which a worker is entitled to weekly payments[11] are calculated commencing from the date on which the original injury first resulted in the worker being incapacitated for work.

    [11]   Return to Work Act 2014 (SA), s 39.

20. I turn to the Full Bench’s treatment of Mr Schroeder’s appeal. Dolphin PJ considered Watkins FC decisive. Mr Schroeder’s injury was a new injury within the meaning of cl 29(1). Under s 7(6) his surgical injury was to be taken as forming part of his original injury. Applying s 39 RTWA, Mr Schroeder’s entitlement to weekly payments of compensation ceased 104 weeks after 27 March 2012. In separate reasons Hannon DPJ arrived at the same conclusion. The third member of the coram was Ardlie DPM who agreed with both Dolphin PJ and Hannon DPJ.

21. Before the Full Bench, counsel for Mr Schroeder submitted that Watkins FC did not determine that in circumstances attracting the operation of cl 29(2) there could only be a new injury. Watkins FC does not determine the status of the original work injury. If the original work injury is an existing injury its status does not alter because of the occurrence of a later surgical injury particularly if Mr Schroeder eschewed reliance upon the surgical injury. Accordingly, Mr Schroeder could elect as to which injury he relied upon. Mr Schroeder also submitted that Watkins FC dealt with circumstances where the surgical injury occurred within 104 weeks of the original injury. It did not deal with the question of what was the date of the new injury where the 104-week period had expired. It is not abundantly clear to me, but in some way the expiration of the 104-week period lent support to the right in a worker to elect to proceed on the original injury alone.

1. In the Full Bench only Hannon DPJ dealt with Mr Schroeder’s attempt to distinguish Watkins FC. He said:[12]

   I acknowledge that the facts in Watkins did not require consideration by the Supreme Court of whether a “new injury” for the purposes of the Transitional Provisions would become the date of the original work injury under s 7(6) of the RTW Act, in circumstances where the period of incapacity with respect to which weekly payments were claimed fell after the two designated periods totalling 104 weeks from the date of the original work injury. Nevertheless, I am unable to discern any basis upon which the appellant can assert an entitlement to elect to claim payments on the basis that the original work injury be treated as an existing injury rather than as a new injury.

   [12]   Schroeder v Return To Work SA [2018] SAET 168 at [49].

2. Hannon DPJ concluded:[13]

   On the facts of the case now before the Full Tribunal, it would seem to necessarily follow that, as the claim for weekly payments was made with respect to an injury which, however described by the appellant, was an injury 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, it must be taken to be a new injury such that the RTW Act applies to it in the manner explained by Stanley J. It is an injury which provides for an entitlement to weekly payments which, by the operation of s 7(6) and s 39 of the RTW Act, is limited to a maximum period of 104 weeks from the date on which incapacity first occurs as a result of the original work injury, being the March 2012 injury. The further period of total incapacity following the March 2016 surgery falls after the expiry of the period of 104 weeks from the date on which incapacity for work first occurred after the original work injury, being a new injury for the purposes of the RTW Act. The conclusion must be that the intervening decision of the Supreme Court in Watkins confirmed that the Deputy President was correct to conclude that the entitlement period for weekly payments with respect to the new injury expired by 26 March 2014. For this reason the decision below to dismiss each of the applications for review of the three disputed decisions must be upheld, and the appeal must be dismissed.

   [13]   Schroeder v Return to Work SA [2018] SAET 168 at [50].

3. Hannon DPJ was also the only member of the coram to deal with the question of the entitlements due to Mr Schroeder in the event that Watkins FC was distinguishable. In this regard Pennington v Return to Work SA (Pennington) presented as a second obstacle to Mr Schroeder succeeding.[14] Pennington is authority for the proposition that a worker who does not have an entitlement to receive a weekly payment on the designated day (1 July 2015) is not entitled to income maintenance for a claim made post 1 July 2015 in relation to an existing injury. In Ms Pennington’s case she had no entitlement as at the designated day because weekly payments had been discontinued under s 36(1)(d) WRCA. It is unnecessary to deal further with Hannon DPJ’s treatment of Pennington. Suffice it to say Hannon DPJ considered Pennington wrongly decided. In arriving at this conclusion Hannon DPJ relied in part upon the reasoning of Calligeros DP in Andrzejczak v Department for Education and Child Development.[15]

   [14]   [2016] SAET 21.

   [15]   [2017] SAET 183.

4. But for Watkins FC Hannon DPJ concluded that Mr Schroeder was a category C worker within the meaning of sch 9 cl 37 RTWA.

5. Mr Schroeder now seeks permission to appeal on the following grounds:

   That the Full Bench misconstrued the RTWA in holding:

   1.the designated period for weekly payments with respect to the injury being partially attributable to the trauma that occurred on 27 March 2012 and partially attributable to the trauma that occurred on 30 March 2016 (the new injury), expired 26 March 2014;

   2.from 30 March 2016, the incapacity, and entitlement to weekly payments, be attributed wholly and exclusively to the new injury, such that the applicant had no entitlement to weekly payments with respect to the existing injury.

6. In support of the first ground of appeal Mr Schroeder seeks to argue that Watkins FC was wrongly decided. In particular, he wishes to argue that it was wrong to determine that the date of the new injury within the meaning of cl 29(1) in circumstances where cl 29(2) applies is the date of the original injury.

7. In support of the second ground of appeal Mr Schroeder contends that he had both an existing injury and a new injury within the meaning of cl 29 RTWA and was entitled to weekly payments in respect of each. Dealing with his second claim first, that claim was for compensation for periods that occurred prior to 1 July 2015 when Mr Schroeder was unable to work due to his injury. The operative injury at those times was and could only have been the existing injury which occurred on 27 March 2012. Mr Schroeder contends that in relation to this claim contrary to the decision of the Full Bench, Watkins FC is not decisive.

8. If Mr Schroeder is right in relation to his second claim, then his second claim relates to an existing injury and his rights, entitlements and obligations in relation to that injury fall to be determined under sch 9 cl 37. However, Pennington presents as a second obstacle to Mr Schroeder succeeding. In Mr Schroeder’s case, applying Pennington, he had no such entitlement because, as of the designated day, he had returned to work.[16] In Pennington the Full Bench referred to sch 9 cl 37 RTWA and determined:[17]

   The definition of each of the three entitlement periods in s 35(8) of the WR&C Act describes the length of the particular entitlement period. The definitions require that the worker “has an incapacity for work and is entitled to the payment of compensation under this Act for that incapacity.” It seems to us this phrase does not mean a notional or theoretical entitlement to a weekly payment. It refers to an entitlement to receive an actual weekly payment. Thus each of the entitlement periods of 13 weeks and 104 weeks respectively may have spanned a period of more than 13 or 104 calendar weeks, as an entitlement week must have both incapacity for work and an entitlement to receive compensation on account of that incapacity.

   Clause 37(1) of sch 9 of the RTW Act adopts the language of s 35(8). This is not surprising as cl 37(1) is designed to manage the transition of weekly payments from one Act to the other. Clause 37(1) also requires there must be an entitlement to receive a weekly payment in respect of incapacity for work as a result of an injury. Again, the criterion is the entitlement to receive an actual weekly payment, not to receive a notional, theoretical or future weekly payment.

   Clause 37(6) is expressed to be for the avoidance of doubt. It provides that if weekly payments have been discontinued pursuant to s 36 of the WR&C Act prior to 1 July 2015, there is no entitlement to weekly payments under either the RTW Act or the WR&C Act. It is trite law that an entitlement to a weekly payment can be revived after a discontinuance issued under s 36. Despite that, Parliament has chosen to rely on the status of the entitlement to weekly payments as at 1 July 2015. That is arbitrary, but the preference appears to have been for certainty rather than flexibility or equity.

   [footnotes omitted]

   [16]   See Workers Rehabilitation and Compensation Act 1986 (SA), s 36(1)(c).

   [17]   [2016] SAET 21 at [25]-[27] (Gilchrist DPJ, Hannon DPJ and Calligeros DP).

9. In the result any discontinuance under s 36 WRCA operative on 1 July 2015 resulted in a worker who had an existing injury ceasing to be entitled within the meaning of sch 9 cl 37 RTWA. Under cl 37 entitlement was equated to being in receipt of weekly payments.

10. Mr Schroeder contends that Pennington was wrongly decided. In support of this application he points to the doubt cast upon the decision in Andrzejczak v Department for Education and Child Development[18] and by Hannon DPJ in the present case.[19]

    [18]   [2017] SAET 183.

    [19]   Schroeder v Return to Work SA [2018] SAET 168 at [51]-[84].

11. Next Mr Schroeder contends that in relation to his first and third claims, irrespective of that component of his injury attributable to his surgery, he had, and has, an existing injury in relation to which he has an entitlement to weekly payments. As I understand the argument, the operation of s 7(6) may operate to deny him compensation in relation to the new injury but it does not necessarily follow that he loses an extant right or entitlement in relation to that component of the new injury that constitutes an existing injury. With respect to the existing injury, rights, entitlements and obligations are the subject of sch 9 cl 37. If Mr Schroeder’s argument is right, Stanley J’s dichotomy in Watkins FC is not absolute and Mr Schroeder must again confront the question of whether Pennington was rightly decided. This argument he contends is that foreseen by Kourakis CJ in Watkins FC where the Chief Justice said:[20]

    None of the steps by which this conclusion is reached requires a categorisation of the original injury as a new injury or “composite” injury. In particular, the conclusion does not necessarily mean that a worker who is entitled to weekly payments pursuant to clause 37 of the Schedule by reason of an existing injury attributable solely to trauma inflicted before the enactment of the RTW Act loses that entitlement if he or she is subsequently incapacitated following medical treatment.

    [20]   Return to Work Corporation of South Australia v Watkins [2017] SASCFC 149 at [4].

12. Rule 291(4) of the Supreme Court Civil Rules 2006 (SA) allows for an application for permission to appeal to be heard by a single judge in private without hearing from either party. I followed such course.

13. In Mills v Return to Work Corporation of South Australia I said:[21]

    The requirement that permission be obtained is discretionary; it is not enough then that an appeal may concern a question of law. The discretion is not fettered save by the purpose it serves. Obviously, the requirement that permission must be obtained is intended as a means whereby this Court may control the flow of business from the Full Bench. In addition, the appellate jurisdiction conferred on this Court by s 68 of the South Australian Employment Tribunal Act 2014 (SA) being confined to questions of law is intended to permit this Court to superintend the Full Bench of the Tribunal (including a Full Bench of the South Australian Employment Court) in the discernment and application of the law. The discretion whether to grant permission to appeal must be exercised with this in mind. Merit review forms no part of this Court’s function. It follows that generally a grant of permission cannot be expected unless the question of law raised is one of wider importance, or concerns conflicting authority, or it is otherwise in the interests of justice that it be considered. It is to be expected that the factual context in which the question arises must provide a suitable vehicle for its consideration and determination and that the appeal is reasonably arguable and enjoys some prospects of success.

    [21] [2019] SASC 56 at [21].

14. I remain of this view. I add that in its workers compensation jurisdiction the Employment Tribunal is a specialist body proceeding in a manner intended to result in expeditious outcomes. Applications for permission to appeal to this Court should not overlook these considerations.

15. I am satisfied that in the present case the grounds of appeal and the arguments in support raise questions of law.

16. As for the first ground of appeal, the argument as advanced in the papers suggests that Watkins FC drew upon cl 29 in determining that the date of the new injury was the date of the original injury. I do not think that is so. The conclusion that the date of the new injury was the date of the original injury arises from the text of s 7(6) RTWA. As Stanley J made plain in Watkins FC, cl 29 determines which of either sch 9 or the substantive Act apply in determining whether and what rights, entitlements and obligations attach to a compensable injury. Clause 29 does not purport to determine what those rights, entitlements and obligations are nor when they commence or conclude.

17. The real question is whether s 7(6) RTWA purports to do more than use a fiction intended to avoid difficult questions of causation. Watkins FC holds that it does; s 7(6) also deems the date upon which any right, entitlement and obligation arise in relation to the surgical injury to be the date upon which the original injury gave rise to incapacity.

18. To succeed in the Full Court Mr Schroeder has to establish that Watkins FC is not just wrong but plainly wrong. I do not think it is reasonably arguable that Watkins FC is wrong let alone plainly wrong. I would refuse permission to appeal on the first ground of appeal.

19. I consider that the second ground of appeal is reasonably arguable and raises questions of law of general importance particularly in relation to the second claim. I would grant permission to appeal in relation to the second ground of appeal.

20. Permission to appeal is refused in relation to the first ground of appeal contained in the draft notice of appeal dated 9 November 2018. Permission to appeal is granted in relation to the second ground of appeal contained within the same notice.