South Australian Employment Tribunal case update02 May 2019
The Return to Work Act 2014 (SA) (RTW Act) represented the most significant reform to workers’ compensation legislation in South Australia for the best part of 30 years. The RTW Act established the Return to Work scheme, which “provides the framework for the delivery of support and services to people who have suffered a work injury to assist them to recover from their injury and return to work”.
This update covers important recent and precedent-setting decisions that have been handed down by the South Australian Employment Tribunal (SAET), affecting self-insured employers, registered employers, claims agents and key stakeholders within the scheme.
Important recent decisions
RTWSA v Mitchell  SASCFC 34
This is a decision of the Full Court of the Supreme Court dealing with an appeal that raised the question as to whether the worker suffered two or more compensable injuries arising from the same trauma within the meaning of s 43(6) of the WRC Act. The worker made claims for lump sum compensation following lumbar spine surgery in 2011, and further claims pursuant to s 43 of the repealed Act for mastication and deglutition, xerostomia, impairment of the genito-urinary system, impairment of the upper and lower digestive system, erectile dysfunction and bladder dysfunction (further impairments). At first instance, DP Calligeros of the SAET felt compelled to follow the decision in Martin v ReturnToWorkSA  SAET 95 and proceeded to determine the level of whole person impairment (WPI) by combining the assessment of 26% previously made in respect of the worker’s lower back injury and scarring with the further impairments, adopting the concept that they were all “compensable injuries arising from the same trauma” for the purposes of s 43(6)(a) of the WRC Act. The result of combining the various WPI assessments for the purposes of calculating compensation pursuant to s 43 of the WRC Act was that the worker’s total WPI was 70%.
What you need to know: Chief Justice Kourakis and Justices Stanley and Hinton of the Supreme Court allowed the appeal, setting aside the order of the Full Bench dismissing the appeal from the judgment of Judge Calligeros, and remitted the matter back to the SAET to make factual findings regarding the specific causes and dates of onset of the worker’s various injuries. In reaching its decision, the Supreme Court adopted the view that the further impairments resulted from separate physiological changes to those from the injury to the worker’s lumbar spine and constituted distinct, subsequent compensable injuries. The Court also went on to say that the impairments that arose as a complication of the worker’s ingestion of opioid medication to relieve the symptoms of his lumbar spine injury following surgery, arose not from the original lumbar spine injury, but rather, from the ingestion of the opioid medication. That event occurred subsequent to the event that led to the worker’s lumbar spine injury and so it was not the case that the further impairments arose from the same trauma as the lumbar spine injury. Given this reasoning, the issue of combination prescribed by s 43(6) was not made out.
The State of SA v Roberts  SASCFC 25
The worker was a full time lecturer at TAFE SA. She was sent to a rural location to conduct lectures by her employer, and provided with accommodation. The worker was exposed to a high risk of mosquito bites as it was hot, the air conditioner was broken and the worker opened the windows to ventilate her room. She contracted a virus and suffered injuries for which she sought compensation. The Full Court accepted that the injuries arose from employment.
What you need to know: The Court decided that a factual enquiry must be undertaken to answer the following questions:
- Does the worker have an “injury” for the purposes of s 4 of the Act? If yes:
- Did the worker’s injury arise “out of or in the course of employment” within the meaning of s 7 and the extended definition in s 7(5)?
- Was employment a significant (meaning important or influential) cause of the worker’s injury?
RTWSA v Karpathakis; RTWSA v Rudduck  SASCFC 45
The claimants suffered from a set of primary physical injuries and submitted a “shopping list” of surgeries before 30 June 2015—some of which related to already accepted injuries and some of which related to undetermined injuries—and each application provided a “catch all” request for any reasonable surgery required in the future. The issue in dispute was whether the application needed to be specific, related to accepted injuries and in an approved form.
What you need to know: The Full Court held that a “future surgery” application does not have a prescribed manner and form, and merely needs to be lodged within the relevant time period.
The Court also suggested that no decision needs to be made on the application with regards to liability for the surgery until the worker pursues the surgery that is the subject of the application. What constitutes the minimum information required for such an application to be valid remains uncertain.
Gajic v RTWSA  SAET 7
The worker had an existing injury, which was sustained before 1 July 2015. Her weekly payment entitlement period ended on 28 June 2017 and her medical expenses entitlement period ended on 30 June 2018. The worker had surgery approved by RTWSA specifically to occur within her medical expense entitlement period (as opposed to an approved future surgery beyond that period). The worker underwent the surgery days before her weekly payment entitlement period came to an end. The question arose as to whether the worker was entitled to an additional 13 weeks of weekly payments in consequence of s40 of the RTW Act.
What you need to know: A worker with an “existing injury” is not entitled to s 40 “supplementary income support payments” if they have surgery after their weekly payment entitlement comes to an end, if they were paid pursuant to schedule 9, clause 37 of the RTW Act. Subclause (3) bars the receipt of payments.
Significant, precedent-setting decisions
Schedule 9, cl 37(6)
Pennington v Return to Work SA  SAET 21
The worker suffered compensable injuries before 1 July 2015, for which compensation by way of weekly payments of income maintenance was paid. The worker’s entitlements had been discontinued prior to 1 July 2015 when the RTW Act came into force, and the question arose as to whether a worker with no entitlement to weekly payments before 1 July 2015 could access entitlements after the Act, or was precluded because of the terms of the Act’s Transitional Provisions.
What you need to know: It was held that if a transitional worker with an “existing injury” had their entitlement to weekly payments discontinued before 1 July 2015, they cannot obtain an entitlement to weekly payments under the RTW Act. This position was extended even to “seriously injured” workers in later decisions.
RTWSA v Watkins  SASCFC 149
The worker had an injury that occurred before 1 July 2015 (existing injury), for which they received weekly payments of income maintenance. The worker subsequently underwent surgery after 1 July 2015. A question was raised as to whether the worker could access an additional entitlement to weekly payments, or to what extent weekly payments would accrue, in circumstances where s 7(6) of the Act deems surgery to occur on the date of the original injury for which the surgery was undertaken.
What you need to know: A “surgical injury” will, pursuant to s 7(6), be deemed to have occurred as at the date of the original injury. The entitlement to weekly payments of income maintenance will accrue from the date on which an incapacity for work (from the injury) first occurs, which in this case was a date well before the date of surgery.
Puccio v Return to Work SA  SAET 75
The worker underwent an assessment of WPI under s 43 of the repealed Worker’s Rehabilitation and Compensation Act, and a decision followed determining his WPI at 28%. Eighteen months’ later, the worker disputed the decision and produced a new report suggesting he had reached 30% WPI and so should receive additional compensation as well as be classified as a Seriously Injured Worker. A preliminary issue arose as to whether the worker would be granted an extension of time because of the lateness of the bringing of the dispute. The application was denied.
What you need to know: The Tribunal found that a worker who has failed to lodge their claim within the one month limitation period must apply for an extension of time on the basis that good reasons exist to grant that extension and by considering the length of the delay and the explanation as to how the delay occurred. S100 of the RTW Act provides that the Tribunal must only allow an extension of time if satisfied that good reason exists and that another party will not be unreasonably disadvantaged because of the delay in commencing the proceedings. The appropriate considerations are:
- The length of the delay in filing the Application
- the strengths and weaknesses of the case,
- whether it is in the interests of justice to allow the extension of time, and
- the prejudice that would be suffered to the other party.