Stephenson v Return to Work SA

[2018] SASC 59

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Permission to Appeal in Private)

STEPHENSON v RETURN TO WORK SA

[2018] SASC 59

Reasons for Decision of The Honourable Chief Justice Kourakis

18 May 2018

WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - OTHER MATTERS

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

Application for permission to appeal against a decision of the Full Bench of the South Australian Employment Tribunal, pursuant to s 68(2) of the South Australian Employment Tribunal Act 2014 (SA).

Held, granting permission to appeal:

(1)  The application raises an arguable question of the statutory jurisdiction of the South Australian Employment Tribunal. It is arguable that an order in the nature of a pre-emptive declaration that the worker has no entitlements falls outside of the jurisdiction.

Return to Work Act 2014 (SA), referred to.

STEPHENSON v RETURN TO WORK SA
[2018] SASC 59

Civil

1. KOURAKIS CJ:   This is an application for permission to appeal against a decision of the Full Bench of the South Australian Employment Tribunal (the Full Bench).  The applicant, Mr Stephenson, is a worker who suffered the following impairments as a result of an incident at work in January 2009:

   ·lower back

   ·upper digestive system

   ·lower digestive system

   ·mastication and deglutition

   ·skin

2. Mr Stephenson suffered further consequential impairment to his upper back, left shoulder and hips.

3. The claims for the lower back and skin injuries were accepted by the Return to Work Corporation of South Australia (RTW) and lump sum compensation paid.  RTW initially disputed the claims for the left shoulder and upper back injury, but on 21 February 2013 accepted liability for those injuries both for the purposes of reasonably incurred medical expenses and lump sum compensation.  The resulting consent orders included the following clause:

   The worker has no further or other entitlement pursuant to s 43 of the Act arising from his compensable injury sustained on 19 January 2009 mentioned in paragraph 1.1 above and/or of any sequel thereof.

4. Mr Stephenson later brought a claim for the digestive tract, mastication and deglutition impairments.  In a contested hearing, Hannon DPJ found that, although the worker was aware of some symptoms associated with those impairments at the time the consent orders were made, he was not aware that they might develop into impairments and did not contemplate that he would be taken to have agreed not to pursue a further impairment claim with respect to them.  Hannon DPJ held that the claims were not precluded by the consent order and made lump sum compensation awards with respect to those injuries.

5. RTW appealed against the awards made by Hannon DPJ.  On 21 February 2018 the Full Bench, comprising of Dolphin PJ, Gilchrist and Farrell DPJ, allowed the appeal, set aside the awards and confirmed RTW’s determination to reject Mr Stephenson’s claim.  The Full Bench held that Mr Stephenson was precluded from pursuing those claims by reason of an action estoppel arising out of the consent orders.

6. Mr Stephenson appeals against the decision of the Full Bench on the following grounds:

   3.1     The Full Bench failed to resolve, in accordance with law, the appeal, in that it:-

   3.1.1 failed to address and consider the appellant worker’s notice of alternate contentions;

   3.1.2 failed to address and consider submissions made on behalf of the appellant worker centrally relevant to the determination of the appeal.

   3.2The Full Bench erred in concluding that the making of the claims the subject of the review proceedings was barred by the consent orders made on 21 February 2013, and in particular order 3.2, and the terms thereof.

   3.3The Full Bench misconstrued the meaning and effect of the consent orders made on 21 February 2013 and, in particular, order 3.2

7. The difference between the reasons of Hannon DPJ and the Full Bench turns primarily on the proper construction of the clause of the consent orders reproduced above.  The construction contended for by Mr Stephenson and accepted by Hannon DPJ that reads the word “entitlement” strictly, excluding from its ambit those impairments which had not materialised, or of which the applicant was unaware at the time, is arguable.

8. More fundamentally, the decisions below fail to address the question of whether an order in those terms was within the statutory jurisdiction of the South Australian Employment Tribunal.  That jurisdiction is conferred with respect to the determination of particular claims for compensation made by a worker.  It is arguable that an order in the nature of a pre-emptive declaration that the worker has no entitlements generally falls outside of that jurisdiction.  Put in another way, the question is whether in the hearing and determination of a dispute as to a particular claim made, the South Australian Employment Tribunal has jurisdiction to go beyond the determination of that claim and to declare that a worker has no other entitlement under the Return to Work Act 2014 (SA).

9. I would grant permission to appeal.