Vlassis v Return to Work Corporation of South Australia

[2019] SASC 66

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Permission to Appeal)

VLASSIS v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA

[2019] SASC 66

Judgment of The Honourable Justice Hinton

3 May 2019

WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - CAUSAL RELATION BETWEEN INJURY AND INCAPACITY OR DEATH - NEW INTERVENING FORCE - MEDICAL TREATMENT

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 (the Tribunal) to the Full Court of the Supreme Court.

In March 2014 the applicant suffered an injury to his right knee whilst at work resulting in a bleed and the seeding of a staphylococcus aureus in the knee. He sought treatment in May 2014 from two medical practitioners but the treatment he received was substandard. The applicant subsequently developed septic arthritis and experienced heart, lung and kidney failure. He made a claim for workers compensation for his incapacity for work including post May 2014 due to the March 2014 injury. His claim was not accepted by the respondent.

The matter proceeded to determination before the Tribunal. In dismissing the applicant’s claim, the Tribunal held that whilst the applicant’s organ failures were due to the septicaemia that arose from his March 2014 knee injury, the treatment the applicant received from the two medical practitioners was so substandard that it amounted to a supervening cause to which all that occurred thereafter was to be attributed. These findings affected the applicant’s entitlement to workers compensation under the Workers Rehabilitation and Compensation Act 1986 (SA) (WRCA) because it meant that the basis of his claim was not attributable to a work injury, as required by s 30 of the WRCA, but rather to the gross failures of the medical practitioners.

The applicant appealed to the Full Bench of the Tribunal. The Full Bench, in dismissing the appeal, held that it was open to the Tribunal to find that the cause of the applicant’s incapacity for work was due to the substandard treatment of the medical practitioners rather than the work injury.

The applicant seeks permission to appeal to the Full Court of the Supreme Court on two proposed grounds: first, that the Full Bench had failed to address the question of law on the appeal, namely whether the statutory test for an entitlement to workers compensation for an injury arising out of or in the course of employment under the WRCA as picked up the Return to Work Act 2014 (SA), was correctly applied by the Tribunal and, secondly, and in the alternative, that the Full Bench misapplied this statutory test to the facts as found.

Held; permission to appeal is allowed on the two grounds proposed.

Return to Work Act 2014 (SA) sch 9 cl 30; South Australian Employment Tribunal Act 2014 (SA) s 68(2); Supreme Court Civil Rules 2006 (SA) r 291(4); Workers Rehabilitation and Compensation Act 1986 (SA) s 30, referred to.
Hartwell v Electricity Trust of South Australia (1982) 29 SASR 365; Bill Williams Pty Ltd v Williams (1972) 126 CLR 146, distinguished.
Badawi v Nexon Asia Pacific Pty Ltd (2009) 75 NSWLR 503; Mills v Return to Work Corporation of South Australia [2019] SASC 56; Schroeder v Return to Work Corporation of South Australia [2019] SASC 61; Vlassis v Return to Work SA [2017] SAET 153; Vlassis v Return to Work SA; Return to Work SA v Vlassis [2019] SAET 40, considered.

VLASSIS v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2019] SASC 66

Application

HINTON J:

1. This is an application pursuant to s 68(2) of the South Australian Employment Tribunal Act 2014 (SA) for permission to appeal against a decision of the Full Bench of the South Australian Employment Tribunal. The question that arises is as follows: what is the test to be applied in determining when an injury arises from employment within the meaning of s 30(1) of the Workers Rehabilitation and Compensation Act 1986 (SA) (WRCA) as picked up and applied to existing injuries by sch 9 cl 30 of the Return to Work Act 2014 (SA) (RTWA)?

2. 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 did so.

3. At the material time the applicant, Peter Vlassis, worked in an IGA supermarket. On 28 March 2014 Mr Vlassis suffered an injury to his right knee whilst at work. The injury occurred when he twisted his knee whilst his foot was jammed between two pallets. Mr Vlassis was in the process of retrieving a box from one of the pallets and loading it onto a trolley. By claim form dated 24 June 2014, Mr Vlassis sought compensation for that injury. The respondent did not accept the claim and it proceeded to determination before the South Australian Employment Tribunal (the Tribunal). Mr Vlassis was unsuccessful and appealed to the Full Bench of the Tribunal (the Full Bench).

4. At this juncture it is convenient to quote the Full Bench of the Tribunal’s summary of the treatment Mr Vlassis received in relation to his knee injury.[1]

   [1]    Vlassis v Return to Work SA; Return to Work SA v Vlassis [2019] SAET 40 at [10]-[16] (Gilchrist, Farrell and Calligeros DPJJ).

   ... Mr Vlassis attended upon Dr Wolianskyj at the Adelaide Walk-In Emergency Clinic at the Tennyson Medical Centre on 10 May 2014 at which time Dr Wolianskyj noted ‘three days acute injury twisting seems to have exacerbated it’. Mr Vlassis was extremely sick at the time and attended with the assistance of a friend and using a walking stick. … Dr Wolianskyj aspirated the right knee and removed more than 200mm of murky, thick liquid. He then injected 40mg of Depomedrol mixed with Marcain into the knee and bandaged it. Pain relief was prescribed but antibiotics were not.

   On 13 May 2014, Dr Wolianskyj’s practice received test results of the right knee aspiration from Adelaide Pathology Services which showed polymorphs and staphylococcus aureus present in the right knee.

   Mr Vlassis saw Dr Savvoulidis on 14 and 20 May 2014 after his attendance on Dr Wolianskyj on 10 May 2014. Mr Vlassis said he was feeling worse again on 14 May. He collapsed in the doctor’s waiting room. Mr Vlassis asked Dr Savvoulidis to aspirate his knee. Dr Savvoulidis said he would not do so and referred Mr Vlassis for a CAT scan.

   Dr Savvoulidis did aspirate the knee when Mr Vlassis returned to see him on 20 May 2014. Once again a large amount of murky liquid was extracted from the knee. Once again, antibiotics were not prescribed.

   Dr Savvoulidis scheduled knee replacement surgery for 11 June 2014. Although in a note to the referring doctor Dr Savvoulidis mentioned he would put Mr Vlassis on a prophylactic course of antibiotics, the Judge noted that did not appear to take place.

   Mrs Vlassis phoned the rooms of Dr Savvoulidis on 22 May 2014 and asked what the analysis of the fluid taken from the right knee showed. Mr Vlassis was very sleepy and had a funny taste in his mouth at the time of the call. The Judge noted the latter symptom was suggestive of infection. The Judge described what happened after the call:

   At 2.58pm the same day Dr Savvoulidis phoned the worker and requested he proceed to the Western Community Hospital immediately. The worker said he was feeling ‘terrible’. It had now been realised that the worker had a golden staph infection in the right knee. Following the worker’s admission to the Western Community Hospital he underwent a right knee wash-out and was placed on IV antibiotics. However the response was too late to avoid septicaemia throughout his body and as a consequence his organs were majorly affected which I will address later. He was transferred to the Ashford Hospital on 29 May 2014 where he remained a patient until 17 July 2014. The experience has had a shattering effect on him. It appears that the worker partially returned to work in August and by 28 August 2014, was working 35 hours a week. He underwent the knee replacement surgery in February 2015. He ceased work in August 2015 on medical advice. The worker took a holiday in Europe in July 2016, though his participation in the holiday was severely limited.

   The antibiotics flucloxacillin and gentamicin were administered to Mr Vlassis intravenously on 22 May 2014. A further course of gentamicin was administered on the following day. The Judge described the administration of the further course as ‘unfortunate’. That appears to have been because Dr Savvoulidis agreed in cross-examination that he knew that Mr Vlassis’ kidney function was deteriorating prior to the second course of gentamicin being administered. Dr Savvoulidis oversaw the administration of the second course of gentamicin on 23 May 2014 even though he had engaged an infectious diseases specialist, Dr Lee, to treat Mr Vlassis on that same day and even though in evidence he said that making that decision was outside his area of expertise. Creatinine level testing which had been undertaken earlier in the day on 23 May 2014 showed Mr Vlassis had sustained kidney damage. The Judge noted that the NHMRC Guidelines did not recognise gentamicin as a suitable antibiotic for septic arthritis and Dr Savvoulidis agreed that gentamicin ‘was certainly toxic’ if used for more than 48 hours.

   [footnotes omitted]

5. From the above it is plain that before 10 May 2014 Mr Vlassis did not seek treatment for the injury he suffered on 28 March 2014. In the Tribunal the respondent unsuccessfully challenged the assertion that the injury occurred on 28 March 2014. More importantly for present purposes, the respondent also contended that the treatment Drs Wolianskyj and Savvoulidis provided was so substandard as to amount to a supervening cause to which all that occurred thereafter was to be attributed. In relation to this issue the Tribunal heard evidence from a number of specialists some of whom treated Mr Vlassis. The Tribunal found:[2]

   I find that the injury which occurred on 28 March 2014 resulted in a likely bleed and the seeding of the staphylococcus aureus in the knee. These events resulted in the septic condition. In making this finding I accept and prefer the evidence of Dr Philpot. His evidence provides a cogent and convincing explanation for the course of events. A mere twisting injury would hardly, without more, have produced the symptoms and signs the worker experienced. The relentless worsening in his right knee led to the desperate levels achieved on 10 May 2014. This view is supported by Dr Menz, an orthopaedic surgeon with excellent expertise to explain the matter.

   I also prefer Dr Philpot in respect to the timeframes. Dr Gilbert proposed a timeframe that, in my view, did not adequately explain what we know to have happened. We know that by 10 May 2014 the worker had septic arthritis in the right knee. That septic arthritis condition was still untreated by 20 May 2014 and indeed was not treated until 22 May 2014. It would have taken some time on any analysis for the condition to reach the state it was on 10 May 2014. That suggests a timeframe beyond the frame Dr Gilbert was contending. It fits more harmoniously with Dr Philpot’s opinion that the incubation would have been a matter of some weeks. Indeed I accept his opinion that the best indicator of the progress of the condition was the symptoms produced. Those were produced shortly after 28 March 2014 and continued unabated to 10 May 2014. I find that the injury of 28 March 2014 resulted in the septic arthritis and the resultant septicaemia.

   The next issue is whether the septic arthritis and septicaemia resulted in the worker suffering injuries to his heart, his lung and his kidneys. The respondent has accepted the injury to the lung, though on the basis that there was no permanent residue of that injury. In respect to the heart condition I accept the evidence of Dr Hetzel. Even Dr Waddy conceded that his hypothesis of an unrelated and coincidental viral condition is unsatisfactory. In my view it is unsatisfactory. That the damage to the heart occurred while the worker’s body was subject to such catastrophic illness seems a justification for connecting the two. In addition, we have Dr Hetzel’s expert opinion and the Braunwald report. I accept Dr Hetzel’s advice that this supports the connection.

   The kidney failure was, in the view of Dr McDonald, due to the septic condition. I accept Dr McDonald’s evidence. Indeed I regard the difference between Dr Champion de Crespigny and Dr McDonald as marginal at best. I accept, on the evidence of Dr McDonald, the fact that the second dose of gentamicin contributed to the level of the kidney damage. I understood Dr McDonald to identify the septic condition as the main culprit. However, as counsel for the worker indicated, it really is of no importance as the gentamicin was part of the treatment the worker rightfully accepted.

   The result is that I find the three organ failures were due to the septicaemia. Moreover, if it is necessary for me to so find, I hold that this worker continues to be and will be permanently incapacitated by the effects of this injury.

   [footnote omitted]

   [2]    Vlassis v Return to Work SA [2017] SAET 153 at [133]-[137] (McCusker J).

6. As mentioned, the question that then arose was whether Mr Vlassis’ subsequent incapacity for work arose from the 28 March 2014 injury or, as the respondent contended, from the substandard treatment Drs Wolianskyj and Savvoulidis provided. The Tribunal concluded:[3]

   I accept the worker’s evidence as to the way he presented to Dr Wolianskyj. As I have said, I reject the record entered by Dr Wolianskyj that the injury was the result of twisting his knee three days before. He told the doctor he was feeling ill. I would not be surprised if he looked ill though Dr Wolianskyj, not having attended him before, may not have appreciated this. He had gastro-like symptoms. The knee was swollen. His pain was commensurate with his urgent attendance. This attendance was something much more than the presentation with a sore knee.

   I accept the submissions of the respondent that the situation demanded an assumption that this was more than an inflammation unless the test negated any possible infection. I accept the evidence of Dr Menz and Dr Philpot that an infection should have been assumed. It was a simple matter of a due response, warranted in the circumstances. Moreover even without the results of the test it ought to have been evident.

   Dr Wolianskyj’s response to both the gram stain results and the 13 May 2014 report of Adelaide Pathology Partners was grossly inadequate. Furthermore I reject Dr Savvoulidis’ recall of how the worker presented to him on 14 and 20 May 2014. This worker attended Dr Savvoulidis on both occasions and as we now know was very sick. He collapsed in the consultation room on 14 May 2014. I accept what the worker said about the attendance on both these occasions. Dr Savvoulidis’ recollection, in my conclusion, has played him false. He missed an obvious diagnosis.

   I also reject Dr Savvoulidis’ contention that there was no obligation on him to find out the results of the 10 May 2014 test. I accept the views of Dr Menz and Dr Philpot that even without those results Dr Savvoulidis should have realised he was facing an infected knee. But at the very least he should have been suspicious of it and he should have chased up the possibility that the test results were available.

   While at no time were any of the doctors indifferent to the worker’s welfare the standards were, to use the terms in Mahony, “inexcusably bad”, completely outside the bounds of what any reputable medical practitioner might prescribe and so inadequate in the circumstances as to give rise to a novus actus interveniens. I accept the contention of the respondent that there were four occasions, each of which were serious defaults. Moreover even as at 20 May 2014, had action been taken, there is some reason to believe the situation could have been saved. Certainly the earlier occasions would have meant the worker could have been cured and back on his feet in a short time.

   As a result of these findings the worker’s entitlement to compensation is affected because the basis of the claim, namely the entitlements to compensation under ss 32 and 35 of the Workers Rehabilitation and Compensation Act 1986 are not attributable to the work injury but rather to the gross failures of Dr Wolianskyj and Dr Savvoulidis. …

   [footnote omitted]

   [3]    Vlassis v Return to Work SA [2017] SAET 153 at [138]-[143] (McCusker J).

7. Mr Vlassis appealed to the Full Bench. The respondent both cross-appealed and filed a Notice of Contention. The cross-appeal was subsequently abandoned.

8. Before the Full Bench Mr Vlassis submitted that common law principles governing causation did not apply, rather whether the injury was compensable was a question of applying the legislatively prescribed test. The respondent submitted that the question of whether the chain of causation had been broken was an evaluative one involving questions of fact and degree.

9. A unanimous Full Bench considered that a supervening act could operate to break the chain of causation between a work injury and incapacity. Further, that supervening act may in fact not be an act at all but an omission. The Full Bench referred to Hartwell v Electricity Trust of South Australia (Hartwell)[4] and Bill Williams Pty Ltd v Williams (Williams).[5] The Full Bench referred to the judgment of King CJ in Hartwell as holding that a worker who had a partial incapacity for work due to a work injury and a total incapacity for work due to a non-work related heart attack was not entitled to weekly payments. In Williams a worker was shot by the husband of a woman with whom he was having an affair as he fled from his work place during work hours. The High Court determined that although the injury was sustained immediately outside the workplace, and although the worker would have remained at work but for the husband’s arrival, the injury sustained did not occur in the course of employment. The Full Bench said:[6]

   Hartwell and Williams show that there are occasions in workers compensation matters where the question of whether or not an injury arises out of or in the course of employment can be subject to broader causal considerations.

   [4] (1982) 29 SASR 365.

   [5] (1972) 126 CLR 146.

   [6]    Vlassis v Return to Work SA; Return to Work SA v Vlassis [2019] SAET 40 at [43] (Gilchrist, Farrell and Calligeros DPJJ).

10. The Full Bench observed that the question of whether an act or omission was causative of an outcome was one of fact as was the question of whether an act or omission is a significant cause of the outcome. The Full Bench concluded that it was open to the Tribunal to find that Drs Wolianskyj and Savvoulidis were negligent and that the extent of their negligence was causative of Mr Vlassis’ organ failure and consequent incapacity for work. The Full Bench concluded:[7]

    The Judge’s comment that the infection in Mr Vlassis’ right knee should have been evident to Dr Wolianskyj and to Dr Savvoulidis is plainly correct. In addition to how unwell Mr Vlassis was when he presented to both doctors, the amount and type of fluid around his right knee was suggestive of infection. Not surprisingly the Judge did not accept the evidence of Dr Wolianskyj and Dr Savvoulidis that Mr Vlassis appeared well when he consulted them in May 2014.

    In addition to Mr Vlassis’ physical state, there were gram stain results and the 13 May 2014 report of Adelaide Pathology Partners which described the present of staphylococcus aureus in the right knee. AP Philpot said that the presence of numerous polymorphs in the first aspirate taken from the right knee should have altered a medical expert to the likelihood of infection. When asked whether a general practitioner should understand that just because a gram stain did not show any bacteria, that did not exclude infection, AP Philpot answered:

    Even a third year medical student should know that, not just a GP and particularly not a self-proclaimed emergency department specialist, particularly when there were numerous polymorphs – that’s inflammation cells – which indicate a bacterial infection in this case.

    There was ample evidence to enable the Judge to find that the cause of Mr Vlassis’ incapacity for work was the ‘inexcusably bad’ treatment he received rather than the work injury of 28 March 2014. The findings made by the Judge complained of in the appeal were findings of fact which should not be overturned on an appeal limited to a question of law.

    The appeal is dismissed. Given the outcome it is not necessary to consider the Notice of Contention.

    [footnote omitted]

    [7]    Vlassis v Return to Work SA; Return to Work SA v Vlassis [2019] SAET 40 at [47]-[50] (Gilchrist, Farrell and Calligeros DPJJ).

1. On the present application Mr Vlassis contends that the Tribunal erred in that it failed to apply the legislatively prescribed test for causation contained in the WRCA as picked up by the RTWA. Further, in endorsing the Tribunal’s approach, the Full Bench had done likewise. In each instance the conclusions arrived at were disengaged from the legislatively prescribed test.

2. Section 30(1) WRCA provides that, subject to the WRCA, an injury is compensable if it arises from employment. Section 30(2)(a) WRCA provides that an injury arises from employment if, in the case of an injury that is not a secondary injury or disease, it arises out of or in the course of employment. Section 30(2)(b) deals with the position where the injury is a secondary injury or disease. A secondary injury is defined in s 3 WRCA as meaning an injury that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury. Mr Vlassis had a history of trauma to his right knee. It is not expressly stated in the papers that the injury of 28 March 2014 was or was not a secondary injury. If it were a secondary injury it would arise from his employment and be compensable if either the injury arose out of his employment, or, the injury arose in the course of his employment and the employment contributed to the injury.

3. Section 30(3) WRCA expands the meaning of a worker’s employment to include, relevantly, attendance by the worker “at a place to receive a medical service, to obtain a medical report or certificate (or to be examined for the purpose), to participate in a rehabilitation program or for the purposes of a rehabilitation and return to work plan, or to apply for, or receive, compensation for a compensable injury”.[8] It is arguable then that if an injury arises out of or in the course of attendance at a place to receive a medical service for a compensable injury, the injury sustained in the course of the attendance is itself a compensable injury.

   [8]    See Workers Rehabilitation and Compensation Act 1986 (SA), s 30(3)(e).

4. That an injury must arise out of or in the course of employment before it is to be regarded as compensable is a common test in workers compensation legislation. The use of the disjunctive is significant in that it has been held that two different tests are invoked.[9] The first test — in the course of — contains no causal element. The second test — arises out of — requires a causal relation between the accident or event causing the injury and the worker’s employment. Williams concerned the former test whilst in Hartwell compensability was not in dispute, rather the issue was how to calculate weekly payments for a period of partial incapacity due to injuries sustained in the course of employment where the worker was incapable of doing any work due to causes unrelated to his employment. Neither authority concerned the construction and application of any analogue to s 30(3)(e) WRCA.

   [9]    See, for example, Badawi v Nexon Asia Pacific Pty Ltd (2009) 75 NSWLR 503.

5. The statutory tests — arises out of or in the course of employment — are words of limitation. It seems to me that it is arguable that the questions for the Tribunal and the Full Bench were, first, which of the two tests was invoked, and, second, whether it was open to the Tribunal to be satisfied that Mr Vlassis could not bring himself within the relevant test. So much was the case in relation to the injury of 28 March 2014. However, there is an added complexity. If the treatment afforded Mr Vlassis constitutes an independent cause of his incapacity, was s 30(3)(e) nonetheless engaged? The Full Bench did not adopt such approach.

6. In Mills v Return to Work Corporation of South Australia[10] and Schroeder v Return to Work Corporation of South Australia[11] I set out the principles applicable in considering whether to grant permission to appeal under s 68(2) of the South Australian Employment Tribunal Act 2014 (SA). I do not repeat what I said in those cases but have adopted the same approach.

   [10] [2019] SASC 56 at [21]-[22].

   [11] [2019] SASC 61 at [34]-[35].

7. The question of whether the Full Bench has correctly construed the tests for compensability as contained in s 30 WRCA is a question of law. The question of whether, the test for compensability being correctly construed, it was not open to the Tribunal to be satisfied that the injury sustained by Mr Vlassis on 28 March 2014 was not compensable is also a question of law. Those questions raise issues of general importance that this Court has not previously considered. The fact that the substandard treatment of Drs Wolianskyj and Savvoulidis comprised an omission occurring sometime after the injury and once the golden staph infection had taken hold renders this a suitable case to consider the questions raised. In the circumstances I grant Mr Vlassis permission to appeal on the two grounds contained in his draft Notice of Appeal being:

   3.1The Full Bench of the South Australian Employment Tribunal (the Full Bench) failed to address the question of law raised on the appeal against the orders of the trial judge, namely whether the statutory test for an entitlement to weekly payments and medical expenses under the workers compensation legislation was correctly applied by the trial judge to the facts as found.

   3.2In the alternative to 3.1 above, the Full Bench misapplied the statutory test for an entitlement to weekly payments and medical expenses under the workers compensation legislation to the facts as found.