Walker v Return to Work Corporation of South Australia
[2020] SASCFC 55
•18 June 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
WALKER v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2020] SASCFC 55
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Parker and The Honourable Justice Bleby)
18 June 2020
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - GENERALLY
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - PARTICULAR INJURIES, DISEASES AND DISABILITIES - MENTAL AND NERVOUS DISORDERS - PARTICULAR CASES
Appeal against a decision of the Full Bench of the South Australian Employment Tribunal (SAET) dismissing an appeal against the finding of a Deputy President of SAET that the appellant was not entitled to lump sum compensation for non-economic loss under s 43(1) of the now repealed Workers Rehabilitation and Compensation Act 1986 (SA) (the WRC Act).
The appellant suffered a compensable injury to his lumbar spine in August 2012. In May 2013, a consequential injury of stress and anxiety was assessed as compensable, entitling the appellant to weekly payments and medical expenses. In May 2014, the appellant was granted lump sum payment for non-economic loss in respect of the spinal injury. As a consequence of the stress and anxiety, the appellant has developed bruxism. He suffers from temporomandibular joint dysfunction and dental problems, causing problems with mastication and resultant dietary restrictions. In March 2016, a further whole person impairment (WPI) assessment was undertaken in relation to the appellant’s bruxism. In February 2017, the respondent’s claims agent rejected the appellant’s claim for compensation on the basis that his WPI arising from the injuries had been assessed at 2%. Thus, his claim did not meet the threshold of 5% WPI under s 43(4) of the WRC Act. The appellant sought review of that decision in the SAET. The respondent raised a threshold question as to whether the appellant was disentitled to payment by operation of s 43(5).
The trial judge dismissed the appeal on the basis that s 43(5) disentitled the appellant from compensation because his physical injury was “in relation to a psychiatric impairment”. The Full Bench upheld the trial judge’s decision. At issue on the appeal is whether the Deputy President and the Full Bench erred in finding that the impairment suffered by the appellant was “in relation to a psychiatric impairment”.
Held, per Parker J, with Kourakis CJ and Bleby J agreeing:
1. The words “in relation to a psychiatric impairment” in s 43(5) must be read in the context of s 43 as a whole and by reference to the objects that the provision serves.
2. Section 43(5) is concerned with the relationship between non-psychiatric and psychiatric impairments rather than any relationship between an injury and a psychiatric impairment.
3. Before considering the application of s 43(5) to the facts of a particular case, it is necessary to identify the compensable injury suffered by the worker and then assess the impairment, if any, resulting from that injury.
4. The words “in relation to” in s 43(5) were intended to, and do, preclude the payment of lump sum compensation in respect of that component of the impairment of a bodily part or function that is not the product of a physical defect but is the manifestation of a psychiatric impairment. In that situation, the impairment would be “in relation to” a psychiatric impairment rather than a physical impairment.
5. The medical experts assessed the appellant’s level of impairment by reference to the problems that he has with mastication and the resultant dietary restrictions. His difficulties with mastication is not “in relation to” a psychiatric impairment but “in relation to” a physical impairment, being his temporomandibular joint dysfunction.
6. The Deputy President and the Full Bench erred in finding that the impairment suffered by the appellant was “in relation to a psychiatric impairment”.
7. Appeal upheld and decision of the Full Bench set aside.
8. Matter remitted to the South Australian Employment Tribunal to finalise the review of the finding by the respondent’s claim agent that the appellant had a whole person impairment of 2%.
Workers Rehabilitation and Compensation Act 1986 (SA) (Repealed) s 43, referred to.
J & G Knowles and Associates Pty Ltd v Commissioner of Taxation (2000) 96 FCR 402; O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356; PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301; Workers Rehabilitation and Compensation Corporation v Lu (1995) 183 LSJS 193, applied.
Hume Steel Ltd v Peart (1947) 75 CLR 242; Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; Smith v Federal Commissioner of Taxation (1988) 164 CLR 513; Department for Health and Ageing v Li (2018) 130 SASR 578; South Australia v van Hattem (No 2) [2020] SASCFC 45, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"in relation to"
WALKER v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2020] SASCFC 55Full Court: Kourakis CJ, Parker and Bleby JJ
KOURAKIS CJ: I would allow the appeal and join in the orders proposed by Parker J for the reasons his Honour gives.
PARKER J: This is an appeal against the order of the Full Bench of the South Australian Employment Tribunal (SAET) dismissing an appeal against the finding of a Deputy President of SAET that the appellant was not entitled to lump sum compensation for non-economic loss under s 43(1) of the now repealed Workers Rehabilitation and Compensation Act 1986 (SA) (the WRC Act). The basis for the decision of the Deputy President and the Full Bench was that s 43(5) of the WRC Act disentitled him from compensation on the basis that his physical injury was “in relation to a psychiatric impairment”.
For the reasons that follow, I would uphold the appeal and set aside the decision and order of the Full Bench.
Background
The appellant suffered an injury to his lumbar spine on 16 August 2012. This injury was accepted as compensable by the respondent’s claims agent. On 30 May 2013, the claims agent also accepted that an injury described as “stress and anxiety” was compensable and that he was therefore entitled to weekly payments and payment of medical expenses. Subsequently, on 21 May 2104, the appellant was granted a lump sum payment for non-economic loss arising from the spinal injury.
The claims agent determined on 9 March 2016 that the bruxism suffered by the appellant had been accepted “as consequential to the original injury of musculo-ligamentous lumbar back strain, seq stress & anxiety”.[1] He was subsequently advised that a further whole person impairment (WPI) assessment would be undertaken in relation to his bruxism.
[1] The term “bruxism” is defined by Dorland’s Illustrated Medical Dictionary (30th edn) to mean “involuntary, non-functional, rhythmic or spasmodic gnashing, grinding and clenching of teeth (not including chewing movements of the mandible), usually during sleep, sometimes leading to occlusal trauma”. In turn, the word “occlusal” is defined by the same dictionary to mean “pertaining to the contacting surfaces of opposing teeth”.
On 16 February 2017, the claims agent rejected the appellant’s claim for compensation for economic loss by way of a lump sum payment, on the basis that his WPI arising from the mastication and deglutition injuries had been assessed at two per cent. Thus, his claim did not meet the threshold of five per cent WPI under s 43(4) of the WRC Act.
The appellant sought review of that decision in the SAET. The application for review came before a Deputy President. The respondent raised a threshold question as to whether the appellant was disentitled to a lump sum payment by the operation of s 43(5).
Proceedings before the Deputy President
The evidence of the appellant
The appellant stated that “quite some time” after the injury to his back he began to suffer pain in his jaw and difficulty in fully opening his mouth. He also experienced frequent headaches. He became aware that he was grinding his teeth and his general dental condition had deteriorated. He had received treatment for cracked teeth.
The appellant also stated that at the time of trial he was continuing to have a lot of pain and discomfort in his jaw, and also experienced a frequent cracking sensation in the jaw. He experienced pain and difficulties chewing certain foods and had found it necessary to modify his diet and eating practices. When he experiences pain as a result of chewing, this develops into a headache. He also suffers from dryness of the mouth. His dentist had made him a device described as a “night guard”. However, the night guard had become cracked. He had found that his headaches were less frequent when he used the night guard but he still woke up with pain and cramps in his jaw.
The expert medical and dental evidence
Several medical and dental experts gave evidence before the Deputy President. They were Associate Professor (AP) Umberto Boffa, a consultant occupational physician, Dr Warwick Blakemore, a psychiatrist, Professor Alistair Goss, the Emeritus Professor of Oral and Maxillofacial Surgery at the University of Adelaide (and also a private dental practitioner in those fields), and Dr John Tomich, an otorhinolaryngologist. In addition to their oral evidence, each of the experts provided one or more written reports which were received into evidence.
In the opinion of AP Boffa, the appellant was suffering from chronic bruxism with temporomandibular joint (TMJ) pathology. At another point, he described the bruxism as “fairly severe”. The appellant reported to AP Boffa that he suffered from bi-temporal headaches and significant dietary restrictions because he could not chew. AP Boffa stated that the bruxism had led to chronic TMJ dysfunction and dental pathology that had affected the appellant’s ability to masticate hard food. He assessed the appellant’s WPI at ten per cent and stated that maximum medical improvement had been achieved.
AP Boffa used the term “anxiogenic” to indicate that the bruxism had its origins in an anxiety related condition. AP Boffa also stated that he understood bruxism to be an emotional reaction to chronic pain. People often develop bruxism when they have chronic pain in some area of the body. The pain transfers to bruxism “via some sort of emotional pathway in the brain”.
In his oral evidence Dr Blakemore stated in answer to a question as to whether the appellant would suffer from bruxism but for his continuing pain:
Well, probably not. I mean, he wouldn’t be tense, he wouldn’t be anxious, he wouldn’t be depressed. Imaginably he wouldn’t have any psychiatric condition and he would be able – I mean, chronic bruxism is really complicated, but he almost certainly would relinquish the bruxism as well.
Dr Blakemore stated in his written report of 20 March 2018, concerning the relationship between mental harm and bruxism, that:
Emotional illnesses, such as your client suffers, frequently appear to have bruxism as a symptom of the emotional distress, with your client’s present bruxism almost certainly being due to his ongoing psychiatric condition.
Professor Goss adhered in his oral evidence to the opinion he had expressed in a report dated 16 December 2015, being that:
The bruxism is as a direct result of his injuries. Thus, both from the pain of his spinal injury and also from the emotional stresses arising out of the injury, he is clenching his teeth together with such force that this has created minor cracks in the teeth, and made some of the teeth sore. There is a secondary consequence with his bite splint, which under the influence of his bruxism has made his teeth move.
Professor Goss also stated that when a person suffers from bruxism the jaw muscles push powerfully together and that puts pressure on the teeth and the jaw joint. This causes soreness and cracking of the teeth and can result in a painful jaw joint. The cartilage in the jaw joint is under pressure and it therefore tends to make noises on movement. Professor Goss also indicated that the appellant has difficulties with mastication which he assessed at five per cent WPI.
Dr Tomich recorded in his report dated 22 September 2016, that the appellant had first become aware of dental issues about nine months after his spinal injury. He also stated that:
This worker presents with bruxism which I believe has arisen as a result of anxiety and depression triggered by his involvement in the subject accident, but in particular the subsequent chronic pain situation.
Based on a substantially different understanding of the appellant’s dietary limitations, Dr Tomich assessed his WPI at two per cent. However, I note that the appellant contended in his evidence that Dr Tomich had not correctly understood his dietary restrictions.
Consideration by the Deputy President
The Deputy President accepted the correctness of the submission by counsel for the respondent that the words “in relation to” in s 43(5) of the WRC Act are “wide words which do no more than signify the need for there to be some relationship or connection between the two subject matters”.[2] His Honour noted that there was nothing in the Second Reading speech that explained the intended meaning of s 43(5). His Honour also referred to the discussion by Toohey J in Smith v Federal Commissioner of Taxation concerning the meaning of the terms “in respect of” and “in relation to”.[3]
[2] Walker v Return to Work Corporation of South Australia [2019] SAET 197 at [91].
[3] (1988) 164 CLR 513 at 533.
The Deputy President questioned why the words “in relation to” would have been included in s 43(5) if the intention had been only to exclude compensation for a psychiatric impairment. His Honour found that there was an identified psychiatric injury or impairment and the appellant’s bruxism was a sequelae of the psychiatric impairment. Thus, the bruxism was “in relation to” a psychiatric impairment and therefore not compensable. On that basis, his Honour dismissed the application for review.
Appeal to the Full Bench
Counsel for the appellant submitted that the relevant compensable injury was a physical injury, that being TMJ dysfunction and dentition problems. There was a physical injury which caused a physical impairment although an element of the causal chain was a psychiatric injury that led to the development of bruxism. Counsel also submitted that the root cause of the psychiatric injury was the pain from the physical injury to the appellant’s back.
The Full Bench acknowledged that there was merit in the argument advanced by the appellant. However, the underlying fact was that the anxiety and depression caused by the pain from the appellant’s lumbar spine injury had led to bruxism and thus impairment of mastication and deglutition.
The Full Bench held that although bruxism, TMJ dysfunction and impairment of mastication and deglutition are not psychiatric impairments, the evidence clearly established that these conditions were the symptoms of a psychiatric injury and were causally connected to the psychiatric injury. The fact that the appellant’s anxiety and depression were caused by the pain from his back injury did not mean that his anxiety and depression, which are a psychiatric injury, could be overlooked. The bruxism was a symptom of the anxiety and depression consequential upon the pain from the back injury.
For these reasons, the Full Bench held that the Deputy President had correctly found that the bruxism was “in relation to” the psychiatric impairment. Thus, it was excluded by s 43(5) of the WRC Act from the assessment of permanent impairment. The Full Bench further noted that the inclusion of the words “in relation to” in s 43(5) must have been intended to mean something more than only the exclusion of psychiatric impairments. In the view of the Full Bench, impairments that are physical in nature but have resulted from a psychiatric injury or impairment are excluded due to the use of the words “in relation to” in s 43(5).[4] For that reason, the Full Bench dismissed the appeal.
[4] Walker v Return to Work Corporation of South Australia [2019] SAET 201 at [29].
The appeal to this Court
The appellant was granted permission to appeal to this Court on the following grounds:
3.1The Full Bench of the South Australian Employment Tribunal (and the trial Presidential Member whose decision the Full Bench upheld) misconstrued and/or misapplied s 43(5) of the Workers Rehabilitation and Compensation Act 1986 (SA) in that it:-
3.1.1 misdirected itself in answering the question whether the worker’s bruxism was in relation to a psychiatric impairment (reasons [9] and [29]);
3.1.2 was required to, but failed to, identify the compensable injury in order to assess the impairment resulting from it;
3.1.3 was required to, but failed to, identify the characteristics of the impairment for which lump sum compensation would be payable.
The appellant’s submissions
The appellant submits that as a consequence of his compensable back injury he developed a mental injury. The consequence of that mental injury was that he became a bruxist. As a result, he developed TMJ dysfunction which resulted in a permanent impairment in the form of dietary restrictions.
The appellant contends that the Deputy President and the Full Bench applied the incorrect test in the determination of his claim. Both the Deputy President and the Full Bench failed to identify his compensable injury in order to assess impairment resulting from that injury, and the characteristics of that impairment so as to apply the correct statutory test. That test was whether the entitlement to lump sum compensation being claimed by the appellant was in relation to a psychiatric impairment.[5]
[5] Return to Work Corporation of South Australia v Mitchell [2019] SASCFC 34; (2019) 285 IR 461 at [52] and [55] (Stanley J, with Kourakis CJ and Hinton J agreeing).
The TMJ dysfunction and the dental pathology caused an impairment of mastication and deglutition. That was a separate physiological change that constituted a distinct compensable injury. Properly identified, the compensable injury was not a psychiatric injury.
The appellant also submits that both the Deputy President and the Full Bench failed to identify the impairment for which lump sum compensation would be payable. That impairment was the dietary restriction caused by the impediment to the act of eating, which includes mastication and deglutition. No part of the assessment of impairment based upon the dietary restriction was attributable to an impairment resulting from psychiatric injury. Thus, for example, the appellant did not suffer from an eating disorder or a food phobia or a depressive condition that affected his ability to prepare or eat solid food.
Lump sum compensation is payable under s 43 for an impairment, and not the injury that caused the impairment.[6] Section 43(5) of the WRC Act excludes an entitlement for psychiatric injury and also an entitlement for an impairment, even if caused by physical injury, to the extent that it is attributable to a psychiatric impairment. Thus, s 43(5) would preclude lump sum compensation for non-organic signs and symptoms that are attributable to a psychiatric impairment.
[6] Marrone v Employers Mutual Ltd (2013) 116 SASR 501 at [88]-[90] (White J, with Sulan J agreeing).
The appellant submits that it would be legally incorrect to hold that his entitlement to lump sum compensation is in relation to his original spinal injury suffered in 2012. It would also be legally wrong to say that his entitlement is in relation to the mental harm he suffered as a consequence of that spinal injury. He is claiming an entitlement for a compensable injury, being impaired mastication and deglutition caused by TMJ dysfunction and dental pathology, and in relation to an impairment, being dietary restriction, the assessment of which is in no way attributable to a psychiatric impairment.
For these reasons, the appellant submits that his entitlement is not precluded by s 43(5). That is because his claim is not “in relation to a psychiatric impairment” but a physical impairment.
The appellant further submits that the construction of s 43(5) that he advances is entirely consistent with the limitation or exclusion of lump sum compensation for psychiatric injury that was first adopted in the WRC Act in 1992.
For these reasons, the appellant submits that the matter should be remitted to the SAET to determine the extent of his WPI.
The respondent’s submissions
In light of the factual findings made by the Deputy President, which were not disturbed by the Full Bench, there was no error of law in the finding that the claim for a lump sum payment for non-economic loss was “in relation to a psychiatric impairment” within the meaning of s 43(5). It would have been quite artificial to identify a distinct physical injury which caused the appellant an eating restriction. The discomfort which impaired his eating was not the result of a permanent organic condition. The effect of the evidence and findings made by the Deputy President was that, should the appellant’s psychiatric condition resolve, so too would his difficulties with mastication. Thus, the psychiatric condition was not only the historical cause of his mastication difficulties but also those difficulties were a symptom of his ongoing psychiatric condition.
Accordingly, the impairment upon which the appellant bases his claim is as much an impairment of, and in relation to, a psychiatric condition as is the feelings of upset, frustration and anger from which he suffers.
While the Deputy President and the Full Bench considered the breadth of the expression “in relation to”, the matter could have been resolved without exploring the limits of that expression. This appeal may also be dismissed on the same basis.
The respondent observed that there might possibly be cases where compensation is sought in respect of an impairment such as the loss of a limb which was caused by a psychiatric condition. For example, where a worker commits an act of self-harm caused by serious depression. In such a case, the worker’s physical impairment would have resulted from the psychiatric impairment but would continue to exist even if the psychiatric condition was to be resolved. However, it is not necessary for the Court to consider at this time how s 43(5) might apply in such a case.
The respondent submits that the words “in relation to” should be given the breadth that they naturally carry while recognising that the strength or directness of the connection implied by this phrase depends upon the context in which it is used.[7] The High Court recognised this in O’Grady v Northern Queensland Co Ltd where McHugh J stated that:[8]
The prepositional phrase ‘in relation to’ is indefinite. But, subject to any contrary indication derived from its context or drafting history, requires no more than a relationship, whether direct or indirect, between two subject matters.
[7] Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510 at [25].
[8] (1990) 169 CLR 356 at 376.
The respondent further submits that the text, context and purpose of s 43(5) supports the conclusion that the provision precludes an entitlement to compensation arising where the impairment was caused by a psychiatric condition. The words “in relation to” provide a link between a putative entitlement and a psychiatric impairment. In this context, where the provision provides a linkage between an event and the creation, or non-creation, of rights or entitlements, a natural rather than a limited construction of this causation provision is appropriate.
This Court noted in Department for Health and Ageing v Li[9] that since the judgment in Workers Rehabilitation and Compensation Corporation v Rubbert[10] the Parliament had sought to confine the compensability of psychiatric disorders and had amended the WRC Act so as to require “proof of a more substantial nexus for psychiatric injuries, compared to organic or physical injuries.”
[9] (2018) 130 SASR 578 at [89] (Stanley J, with Bampton J agreeing). I very recently made similar observations, with Kourakis CJ and Tilmouth AJ agreeing, in South Australia v van Hattem (No 2) [2020] SASCFC 45 at [60].
[10] (1991) 160 LSJS 257.
The respondent also contends that although the extrinsic materials do not provide any assistance with the construction of s 43(5), a number of considerations are likely to have influenced the legislature to adopt a different regime for psychiatric conditions. The considerations identified by the respondent are, first, the inherent difficulty of identifying the cause of psychiatric conditions and the impairments that may comprise symptoms of such conditions.[11] Secondly, the respondent observes that while employment may be the initiating cause of a psychiatric illness, such a condition may subsist in a way that is quite divorced from the initial cause. Thirdly, psychiatric conditions are essentially fluid and unpredictable in nature. These considerations may explain why the Parliament, in balancing the cost and affordability of the compensation scheme, introduced the “in relation to” qualification for psychiatric impairments. The respondent also submits that the considerations to which it has referred would militate against an entitlement arising from a more remote impairment that is said to have been caused by the psychiatric condition but which involved a sequelae to physical injury.
[11] That being a matter that I noted in South Australia v van Hattem (No 2) [2020] SASCFC 45 at [56] (Kourakis CJ and Tilmouth AJ agreeing).
The respondent recognises that it is natural for considerations of “fairness” to be considered when determining the meaning of a restrictive or line drawing provision such as s 43(5) contained within a generally beneficial scheme. However, the objects of the WRC Act require that a reasonable balance be struck between the interests of employers and workers, and to ensure that the scheme is fully funded. Thus, it would only be legitimate to apply policy considerations where they have been demonstrated to have been adopted by the Parliament. In this case there is nothing in either the context or evident legislative policy to suggest that s 43(5) should be interpreted in a way that is more limited than the broad words of connection suggest. On this basis, the respondent submits that the appeal should be dismissed.
Consideration
The appellant and the respondent agree that there is nothing in the Second Reading speech that provides any assistance in the construction of s 43(5) of the WRC Act. I have also perused the debate at the Committee stage in both Houses of the Parliament. There was nothing relevant to the construction of s 43(5) said during debate in the House of Assembly. An amendment was moved in the Legislative Council by the Leader of the Greens, the Hon Mark Parnell MLC, that would have deleted what became s 43(5).[12] The Leader of the Government, the Hon Paul Holloway MLC, stated that the Government opposed the amendment as it would remove “the stipulation that an entitlement does not arise in the event of a psychiatric impairment”.
[12] Parliamentary Debates, Legislative Council, 4 June 2008, pages 3154 to 3155.
Read literally, the response by Mr Holloway indicates that the Government only intended to remove an entitlement to compensation for non-economic loss for psychiatric impairments but not impairments that were “in relation to” a psychiatric impairment. However, I do not consider it safe to place any reliance on the observation made by Mr Holloway. When his remarks are read in context, it is apparent that he was simply seeking to explain why the Government opposed the amendment. He did not purport to provide a comprehensive analysis of the operation of the provision.
I have referred at [39] to the observations made by McHugh J in O’Grady v Northern Queensland Co Ltd concerning the meaning of the phrase “in relation to”. In the same case, Dawson J stated that:[13]
The words “in relation to”, read out of context, are wide enough to cover every conceivable connexion. But those words should not be read out of context … What is required is a relevant relationship, having regard to the scope of the Act.
[13] (1990) 169 CLR 356 at 367.
Brennan CJ, Gaudron and McHugh JJ observed in PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service that:[14]
[T]he closeness of the relationship required by the expression “in or in relation to” must… be ascertained by reference to the nature and purpose of the provision in question and the context in which it appears.
[14] (1995) 184 CLR 301 at 313.
To like effect, the Full Federal Court held in J & G Knowles and Associates Pty Ltd v Commissioner of Taxation that:[15]
The words “in respect of” have no fixed meaning. They are capable of having a very wide meaning denoting a relationship or connection between two things or subject matters. However, the words must, as with any other statutory expression, be given a meaning that depends on the context in which the words are found.
[15] (2000) 96 FCR 402 at [22].
It is clear from these authorities that the words “in relation to a psychiatric impairment” in s 43(5) must be read in the context of s 43 as a whole and by reference to the objects that the provision serves.
An electronic search shows that the words “in relation to” appear on 95 occasions in the WRC Act. The words have not always been used to denote a particular connection or relationship between two matters or things. Instead they have sometimes been used in a context where words such as “for” or “with respect to” might have been the more common usage. To take one example, in s 58(1)(a) of the WRC Act the words “in relation to” were used to refer to an arrangement where a person is employed “to act as a referee or umpire in relation to a sporting or athletic contest”. The frequency with which the phrase was used in the WRC Act highlights the need to pay careful attention to the particular statutory context where it appears.
Section 43(1) confers an entitlement to lump sum compensation for non‑economic loss where a worker has suffered a compensable injury resulting in permanent impairment. Section 43(5) negates the entitlement otherwise conferred by s 43(1) if it arises “in relation to a psychiatric impairment”. When read in this context, I consider that the phrase “in relation to” has been used to indicate that s 43(5) is brought into operation by the relationship between some other matter and the psychiatric impairment suffered by the worker.
Because s 43 is concerned with compensation for impairment, the matter that is “in relation to a psychiatric impairment” must also be an impairment other than a psychiatric impairment. Thus, the relationship that will potentially disqualify a worker from lump sum compensation is that which exists between an impairment and a psychiatric impairment. The context indicates that s 43(5) is concerned with the relationship between non-psychiatric and psychiatric impairments rather than any relationship between an injury and a psychiatric impairment.
Before considering the application of s 43(5) to the facts of a particular case, it is necessary to identify the compensable injury suffered by the worker and then to assess the impairment, if any, resulting from that injury. The term “injury” was defined in s 3(1) of the WRC Act to mean “any physical or mental injury”. So as to achieve greater clarity, the definition was also expressed to operate on an inclusive basis so as to include, amongst other matters, loss, deterioration or impairment of either a limb, organ or part of the body or a physical, mental or sensory faculty.
An “injury” in the primary sense means a “disturbance of the normal physiological state”.[16] The effect of the inclusion of an impairment within the definition of “injury” in s 3(1) was to permit an injury to be identified by reference to the disturbance it caused to the normal physiological state. That extension was highly relevant in cases where an injury had progressively occurred over time rather than because of a particular event, e.g. a repetition strain injury or noise induced hearing loss.[17]
[16] Hume Steel Ltd v Peart (1947) 75 CLR 242 at 253 (Latham CJ); Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at [45]-[48] (French CJ, Kiefel, Nettle and Gordon JJ), [74]-[81] (Gageler J).
[17] For completeness, I note that special provision was made in s 113 of the Workers Rehabilitation and Compensation Act 1986 (SA) (Repealed) concerning injuries that developed gradually and, separately, noise induced hearing loss.
Despite that partial conflation of the terms “injury” and “impairment” in the s 3 definition, in the context of s 43 the distinction between an injury and an impairment is important. The distinction is between the disturbance of a normal physiological state, being the injury, and the manifestation or consequences of that disturbance, being the impairment.
For that reason, I consider it quite clear that the words “in relation to” in s 43(5) were intended to, and do, preclude the payment of lump sum compensation in respect of that component of the impairment of a bodily part or function that is not the product of a physical defect but is the manifestation of a psychiatric impairment. In that situation, the impairment would be “in relation to” a psychiatric impairment rather than a physical impairment and therefore excluded from lump sum compensation by the operation of s 43(5).
For that reason, it is of critical importance when applying s 43(5) to the facts of a case, to identify correctly the impairment that is said to be “in relation to” a psychiatric impairment.
It is not uncommon in workers compensation and personal injury claims for the medical evidence to indicate that the physical or functional impairment suffered by a claimant is substantially exacerbated by what is variously described as a somatoform pain disorder or functional or psychiatric overlay. In such cases there may be a substantial difference between the degree of impairment when assessed on an objective medical basis and the level of impairment manifested by the claimant.
The facts before this Court in Workers Rehabilitation and Compensation Corporation v Lu provide an example.[18] The worker suffered from chronic epicondylitis. This caused him to suffer a loss of function of the right arm, at or below the elbow, of somewhere between five per cent and 15 per cent.[19] However, he also suffered from a somatoform pain disorder so that the loss of function of the arm was assessed at 70 per cent. The difference between the two assessments was the product of the somatoform pain disorder. The Workers Compensation Appeal Tribunal had described the worker’s somatoform pain disorder as a psychological complication or a psychiatric condition.[20] In this Court, Doyle CJ referred to the somatoform pain disorder as “a mental disability” or “the impairment of a mental faculty” and “a complication attributable to the injury which gave rise to the chronic epicondylitis”.[21]
[18] (1995) 183 LSJS 193.
[19] The percentages referred to are different to those under the whole person impairment assessment that now applies.
[20] Workcover Corporation v Lu [1994] SAWCAT 79 at 3 and 4 (Gilchrist DP).
[21] Workers Rehabilitation and Compensation Corporation v Lu (1995) 183 LSJS 193 at 194.
Where a worker suffers from an additional restriction in their functional capacity as a result of a somatoform pain disorder, that additional level of impairment would be “in relation to” a psychiatric impairment. Thus, s 43(5) will operate to preclude entitlement under s 43(1) to a lump sum payment for non-economic loss.
A claimant may contend that a particular physical injury (in the sense of a disturbance of the normal physiological state) such as a heart attack or a stroke, has been caused or exacerbated by anxiety (or “stress”) arising from, for example, difficulties experienced in the workplace. If the effect of the use of the words “in relation to a psychiatric impairment” in s 43(5) were to preclude any entitlement to lump sum compensation where the injury suffered by a worker has been caused or exacerbated by a psychiatric condition, then not only will this appellant not qualify for payment under s 43(1), but so also will those who suffer from injuries of the type to which I have referred. For the reasons that follow, I consider such an interpretation to be incorrect.
The respondent has accepted through its claims agent that the appellant suffers from anxiety and “stress” as sequelae of his back injury. That impairment is clearly a psychiatric impairment for the purposes of s 43(5).
The Deputy President found that the evidence established that the appellant’s psychiatric injury caused his bruxism, i.e. tooth grinding. This conclusion has not been challenged. In other words, the appellant’s anxiety has caused him to grind his teeth at night, thereby causing the TMJ dysfunction and dental problems. The latter two conditions are plainly an injury in the sense that they constitute a disturbance of the normal physiological state.
The medical experts have assessed the appellant’s level of impairment by reference to the problems that he has with mastication and the resultant dietary restrictions. The mastication problem and the consequential dietary restrictions are plainly not an illness or disorder of the mind, i.e. they are not of a psychiatric nature.[22] The question is therefore whether the physical impairment in the form of mastication and dietary difficulties is “in relation to a psychiatric impairment”.
[22] See s 30A of the Workers Rehabilitation and Compensation Act 1986 (SA) (Repealed).
Most importantly, the evidence indicates that it is the TMJ dysfunction that has impaired the appellant’s ability to masticate. As I have already noted, the TMJ dysfunction is clearly an injury, in the sense of a disturbance of the normal physiological state. This injury has caused a physical impairment in the form of mastication difficulties.
The impairment for which the appellant seeks compensation, being his difficulties with mastication, is not “in relation to” a psychiatric impairment but “in relation to” a physical impairment, being his TMJ dysfunction. Thus, s 43(5) does not operate to preclude the payment of lump sum compensation for non-economic loss attributable to that impairment.
For that reason, I consider that the Deputy President and the Full Bench erred in finding that the impairment suffered by the appellant was “in relation to a psychiatric impairment”. Accordingly, I would uphold the appeal and set aside the decision of the Full Bench. The matter must be remitted to a single member of the SAET to determine whether the respondent’s agent erred by finding that the appellant had a WPI of two per cent.
Conclusion
I would allow the appeal. I would set aside the decision of the Full Bench and remit the matter to the SAET to finalise the review of the finding by the respondent’s claim agent that the appellant had a whole person impairment of two per cent.
BLEBY J: I would allow the appeal for the reasons given by Parker J. I agree with his Honour’s proposed orders.
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