The recent decision of the Supreme Court of South Australia Court of Appeal, Return to Work Corporation (SA) v English; Williams v Return to Work Corporation (SA) [2023] SASCA 125, has significant implications for injured workers who are seeking to undergo a permanent impairment assessment, and potentially even for the scheme itself as a whole.
The vexed issue of which “injuries” must be assessed together and combined seems finally to be clarified, but there remain evaluative judgements to be made. Why does it matter?
Combination and Seriously Injured Workers
When a worker who has suffered a compensable injury has reached “maximum medical improvement” (their injury has stabilised and there is not likely to be any further deterioration or recovery), they can have their level of permanent impairment as a result of that compensable injury assessed. All impairments are assessed separately. There is no entitlement to lump sum compensation where the permanent impairment is less than 5%. There may be several consequential “injuries” which arise from one incident. If assessed separately and compensated separately, those that are assessed at 5% WPI individually do not give rise to an entitlement to lump sum compensation. If, however, they are combined, each one is taken into account and may make the difference between an injured worker achieving or not achieving seriously injured worker status and, therefore, the entitlement to receive weekly payments to retirement age and medical expenses for life.
An example scenario is a 50 year old full-time worker who suffered compensable injuries to both legs and arms in 2022. The impairment of each leg would be separately assessed, and in our example, the worker was assessed as having 17% whole-person impairment of the right lower extremity, 15% whole-person impairment of the left lower extremity, 4% whole-person impairment of the left upper extremity and 4% whole-person impairment of the right upper extremity. The age of the worker and the hours they worked prior to their injury are relevant for the purposes of calculating their entitlement to a lump sum payment for economic loss.
If these impairments were not capable of combination, the worker would be entitled to the following lump-sum compensation:
- Right Lower Extremity, 17% WPI
Economic loss: $85,004.50
Non-economic loss: $42,107.00
- Left Lower Extremity, 15% WPI
Economic loss: $69,212.50
Non-economic loss: $36,168.00
- Left Upper Extremity, 4% WPI
Economic loss: Nil
Non-economic loss: Nil
- Right Upper Extremity, 4% WPI
Economic loss: Nil
Non-economic loss: Nil
- Total: $232,492.00
As their highest assessment of whole-person impairment is only 17%, they have not reached seriously injured worker status and are only entitled to weekly payments for 104 weeks from the date of incapacity.
However, if the impairments were capable of combination, this particular worker would have reached 35% whole-person impairment and would be a seriously injured worker. It is worth noting that combination is not as simple as adding each of the impairment assessments together, and there is a “Combined Values Chart” which is used to calculate the combination of multiple impairments. As such, they would be entitled to lump sum compensation for non-economic loss in the amount of $200,958, as well as weekly payments at 80% of their average weekly earnings until they reach retirement age.
English
Mr English, an arborist, was injured at work on 4 March 2019 when he cut a rope line that he had attached to a heavy branch. The rope swung and hit the back of his neck, which pushed him forward and pinned his head and neck against a cherry picker. As a result of this injury, Mr English was prescribed and took Lyrica (pain medication).
On 10 May 2019, Mr English again injured himself at work when he fell and injured his right quadriceps. The fall was a result of light-headedness, which was caused by the need for medication (Lyrica) to treat the initial injury.
Whilst Mr English was entitled to lump sum compensation for both impairments, the Corporation determined that the impairments could not be combined. Mr English, however, argued that the impairments arose from the same cause and, as such, should be combined.
Williams
Mr Williams, an electrician, experienced a sudden sharp pain in his right knee while climbing scaffolding while at work in May 2013. It was found that he had sustained a “tear of the medial meniscus in the context of severe osteoarthritis within the right knee”.
After being made redundant in June 2014 and securing new employment in September 2014, Mr Williams was required, from early May 2015, to perform more physically demanding work, “including work that required he repeatedly climb up and down both fixed ladders and stairs, and A-frame ladders”. From the time he changed duties, Mr Williams experienced an increase in his right knee symptoms and then began to experience pain in his left knee. Both injuries were given a date of injury of 18 August 2015, and in September 2018, it was determined that Mr Williams was entitled to lump sum compensation for each knee injury – assessed separately. Mr Williams argued that the impairments for each knee should be combined.
Relevant case law and legislation
His Honour Justice Doyle considered the legislative history with respect to combination of impairments, which included the decisions of Marrone v Employers Mutual Limited (2013) 116 SASR 501, Return to Work Corporation (SA) v Mitchell (2019) 135 SASR 315, and Return to Work Corporation (SA) v Preedy (2018) 131 SASR 86, and Return to Work Corporation (SA) v Summerfield (2021) 138 SASR 175 (“Summerfield”).
In Summerfield, it was held that “impairments from related injuries or causes are not to be disregarded in making an assessment of permanent impairment” and, importantly, that:
The causal test permits an impairment from a consequential injury to be combined with an impairment from another injury where, as a matter of common sense, the impairments are so connected that the trier of facts is satisfied that the impairments are from the “same cause”.
His Honour also noted the recent amendments to the Return to Work Act 2014 (SA) (“RTW Act”) through the Return to Work (Scheme Sustainability) Amendment Act 2022 (SA) (“the Amendment Act”).
The Amendment Act inserted a legislative note to follow Section 22(8) of the RTW Act, which reads as follows:
Note –
The Parliament confirms that this subsection is to be interpreted and applied in accordance with the principles enunciated in the reasons of the Full Court of the Supreme Court in Return to Work Corporation of South Australia v Summerfield [2021] SASCFC 17.
The Amendment Act also amended Sections 22(10), 56(5), 56(8), 58(6), and 58(9) of the RTW Act to remove the reference to combining injuries that arose “from the same trauma”, replacing this with provisions which allow impairments “from the same injury or cause” to be combined, bringing these sections into line with the test set out in Section 22(8)(c) of the RTW Act.
Although the applicable law for both the English and Williams disputes predated the Amendment Act, given that the relevant portion of the Amendment Act was the confirmation that Section 22(8) of the RTW Act is to be interpreted in accordance with the principles of Summerfield, and as the parties had already agreed that Summerfield was applicable, there was no practical significance.
It should also be noted that the Amendment Act has increased the threshold to be considered a seriously injured worker from 30% whole-person impairment to 35% whole-person impairment in the case of a physical injury but remains at 30% for a psychiatric injury.
Consideration
His Honour Justice Doyle concluded that:
In considering whether a later impairment qualifies for combination, it is necessary to consider the causal explanation for each of the impairments, in order to determine whether those explanations possess the requisite sameness. This requires an evaluative assessment of the causal explanations, and in particular any differences between them. It requires an evaluative assessment of whether any additional events or integers in the causal explanations are of a nature or significance that means the impairments cannot be said to arise from the same injury or cause.[1]
Specifically, with respect to the English matter, His Honour further concluded that:
… while the causal explanation for the second impairment involves additional events or integers (the ingestion of pain medication resulting in light-headedness and a fall), there is a direct and straightforward relationship, or causal chain, between the two injuries and hence the two impairments. The additional events are each the natural and foreseeable consequence of the preceding event. The causal chain does not involve, let alone depend upon, any additional event which can be said, as a matter of common sense, to have undermined the directness of the causal chain between the events causing the first injury and the occurrence of the second injury and impairment. In my view, it is appropriate to characterise both impairments as sharing the same causal explanation, and hence arising “from the same injury or cause” for the purposes of s 22(8)(c).[2]
With respect to the Williams matter, the Court also considered that the worker’s right and left knee impairments were capable of combination.
This means that where there are multiple impairments, and the question of combination comes up, what is required is an evaluation of how each impairment has arisen and whether there are any additional events or integers involved in the causation of each impairment such that the second can be said to be a natural and foreseeable consequence of the first.
Another example may help to illustrate this point. Take a person who falls at work and twists their knee, with the knee injury being accepted as compensable under the RTW Act. Then, a month later, when they are back at work, they suffer a blow to the head as a result of a falling object. The head injury is also accepted as compensable under the RTW Act. However, as having an object fall on a person’s head is not a natural and foreseeable consequence of having an injured knee, then the two impairments would not be capable of combination.
However, if the same worker’s knee injury made the knee unstable such that they were prone to becoming unbalanced and falling, and they were to fall and hit their head at work, resulting in a compensable head injury, then it would be argued that the head injury was a natural and foreseeable consequence of the knee injury. It would follow that combination of the two impairments would be required.
Practical implications of decision
The impact of this decision will be significant as the definition of ‘same injury or cause’ has arguably been broadened. When considered with the Amendment Act, which brought the terminology in Sections 56 and 58 of the RTW Act in line with that in Section 22(8)(c) – namely the ‘same injury or cause’ test – the implications are even more far-reaching.
When the concept of a seriously injured worker was introduced, it was anticipated that very few injured workers would reach seriously injured worker status. However, that has not proven to be the case with a significant number of workers achieving the status, and those numbers will increase with a compounding effect on the financial performance of the scheme.
The Amendment Act has raised the seriously injured worker threshold from 30% whole-person impairment to 35% whole-person impairment at relatively the same time as the English and Williams decision, and the decision has arguably broadened the definition of ‘same injury or cause’. It will be interesting to see how the interplay of the increased threshold with the broader definition plays out and whether there will be any impact on the number of workers who reach seriously injured worker status.
In our view, the result is inevitable. There will likely be more litigation as compensating authorities investigate multi-body part impairments, and in carrying out a “common sense” evaluative exercise, they look for differences in the causal elements leading to each individual impairment.
Even though the threshold for seriously injured worker status has been raised to 35% WPI, diligent worker advocates will investigate the existence of other consequential injuries, and inevitably, the number of workers reaching seriously injured worker status will increase with a consequential impact on the viability of the scheme.
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