This decision concerned applications by two workers for approval to undergo surgery that wasn’t yet recommended, but which they may have needed to undergo in the future as a result of workplace injuries, and in particular, the interaction between Sections 33(17) and 33(21) of the Return to Work Act 2014 (SA) (“the RTW Act”).
It is useful to first set out a brief summary of the relevant sections of the RTW Act:
- Section 33(1) provides that a worker “is entitled to be compensated” for the cost of medical and related services reasonably incurred as a result of a workplace injury;
- Section 33(17) allows a worker to apply, in advance, to be compensated for medical and related services that they will incur as a result of a workplace injury;
- Section 33(20) places a time limit on a worker’s ability to make an application under s 33(17) such that they cannot make an application once they have had no entitlement to weekly payments for a continuous period of 12 months; and
- Section 33(21) provides for exceptions to the time limit imposed by s 33(20), so that the time limit does not apply to, for instance, seriously injured workers, or a worker who has made an application (before the end of the time limit imposed by s 33(20) for pre-approval of surgery or medical services that they may require in the future.
Mr Karpathakis allegedly sustained a workplace injury in 1 December 2014, for which he lodged a claim pursuant to the Act on or about 30 March 2016. This claim was rejected, and Mr Karpathakis has filed an application in the Tribunal to have the rejection reviewed. At the time of the decision, the matter had not yet been determined by the Tribunal. On 30 June 2016, Mr Karpathakis applied, purportedly pursuant to sub-ss 33(20) and (21) of the RTW Act and r 23 of the Return to Work Regulations 2015 (SA) (“the Regulations”), for pre-approval for surgery and related medical services that he may require in the future. This was treated as an application made pursuant to s 33(17) of the RTW Act, and as it did not comply with the Regulations, this application failed.
Mr Rudduck had an accepted claim for compensation for a workplace injury which he sustained on 11 March 2015. On 30 June 2016, Mr Rudduck applied, again purportedly pursuant to sub-ss 33(20) and (21) of the RTW Act and r 23 of the Regulations, for pre-approval for surgery and related medical services that he may require in the future. This application also failed.
Both workers were out of time to make another application pursuant to s 33(21) of the RTW Act, and so applied to the Tribunal for review of the decision. At first instance, both Mr Karpathakis and Mr Rudduck failed, as the Tribunal held that their applications were to be treated as applications for “pre-approval of expenses pursuant to s 33(17)”, and the applications did not have the level of detail required for such an application.
Both workers appealed to the Full Bench of the Tribunal, who accepted Mr Karpathakis’ and Mr Rudduck’s contentions that their applications were made pursuant to s 33(21) of the RTW Act, and that such an application should be determined by the terms of s 33(21) only, without reference to s 33(17) or r 22.
The Return to Work Corporation of South Australia (“the Corporation”) then appealed to the Full Court of the Supreme Court. The Full Court agreed with Mr Karpathakis and Mr Rudduck, and dismissed the Corporation’s appeal. Broadly speaking, the reasons for this were as follows:
- Subsection 33(21) of the RTW Act is an entirely different type of application to that in s 33(17) and “does not, of itself, comprise an application pursuant to subsection (17)”;
- all that s 33(21) of the RTW Act does is provide a range of exceptions to the time limitation prescribed in s 33(20); and
- if the Corporation were to accept an application under s 33(21), a successful worker would still be required to make an application under s 33(1) or s 33(17) when they were ready and able to make such an application, which would then be determined on the information provided at that time.
In conclusion, the Court’s interpretation of s 33(21) is that it allows an injured worker to put the Corporation or self-insured employers on notice that the worker may make an application in the future. The application can then be assessed in accordance with the criteria in the Regulations at the time.
Return to Work Corporation of South Australia v Preedy [2018] SASCFC 55
This decision concerned two injuries sustained by the worker, Mr Preedy, and whether Mr Preedy was entitled to have the two injuries assessed in combination to determine his level of whole person impairment. In particular, the interaction between and proper construction of s 28(8)(c) and s 58(6) required consideration.
Mr Preedy had an accepted claim for a left shoulder injury sustained in the course of employment in 2012. In October 2013, the Corporation determined that this injury resulted in whole person impairment (“WPI”) of 11% and, as such, Mr Preedy was entitled to compensation for non-economic loss in the amount of $21,792 in accordance with s 43 of the Workers Rehabilitation and Compensation Act 1986 (SA) (“the WRC Act”).
On 16 April 2013, while he was receiving physiotherapy treatment for his left shoulder injury, Mr Preedy sustained a fracture of the C5 vertebrae. His claim for compensation for the neck injury was accepted by the Corporation in May 2015. When determining this claim, the Corporation received medical evidence to the effect that Mr Preedy was suffering from cancer of his blood cells in bone marrow, which was the underlying cause of the C5 fracture. However, the physiotherapy was still considered to have contributed to the fracture. On 13 January 2016 the Corporation determined that the neck injury resulted in WPI of 27% and Mr Preedy was entitled to compensation for non-economic loss in the amount of $71,985 pursuant to s 58 of the RTW Act.
On 3 February 2016, Mr Preedy challenged this determination, and said that his two injuries were the same injury, or that they arose from the same cause, and so s 22(8)(c) of the RTW Act applied and the injuries should be combined to determine his WPI, which would mean a WPI of 35%.
At first instance, the Tribunal rejected Mr Preedy’s claim, saying that the two injuries did not arise from the same trauma and so the impairments should not be combined for the purposes of a s 58 assessment. Mr Preedy appealed to the Full Bench of the Tribunal, who held that the two impairments should be combined for the WPI assessment. The Corporation then appealed to the Full Court of the Supreme Court.
In his judgement, Justice Stanley considered the difference between s 22(8)(c) and s 58(6)(a), and summarised it as follows: “s 22(8)(c) prescribes the approach to be adopted in assessing impairments from the same injury or cause. By way of contrast s 58(6)(a) prescribes the approach to be taken in determining an entitlement to lump sum compensation for non-economic loss where a worker suffers two or more injuries arising from the same trauma” (emphasis added).
Trauma is defined in the RTW Act as “an event, or series of events, out of which a work injury arises”. Justice Stanley considered that ‘impairment’ and ‘injury’ are “related but distinct concepts”, with impairments being the result of injuries. Therefore, the two sections make a distinction “between causes and consequences”.
Justice Stanley decided that it was necessary for an analysis of whether Mr Preedy had “suffered two work injuries arising from the same trauma”, or whether Mr Preedy’s impairments were “from the same injury or cause” and so remitted the matter back to the Tribunal for a decision.
We understand that before it lists this remitted matter for decision, the Tribunal is waiting for the Supreme Court’s decision in the appeal of Return to Work SA v Mitchell [2017] SAET 81.
In the meantime, Justice Stanley’s reasoning means that when combining injuries or impairments for the purpose of whole person impairment, it will be necessary to adopt a different approach to determining whole person impairment pursuant to s 22 as opposed to s 58. Namely, that when determining whole person impairment pursuant to s 58 (in order to determine the entitlement to a lump sum payment for non-economic loss) the assessment is focused on multiple impairments from two (or more) work injuries that have arisen from the same trauma (or event). However, when determining whole person impairment pursuant to s 22 (in order to determine permanent impairment) the assessment is focused on multiple impairments that have arisen from the same injury or cause.
Justice Stanley went on to state that these two approaches are complementary, such that an injured worker now has two methods by which injuries can be aggregated for the purpose of determining whole person impairment.