Combination and Permanent Impairment - "…
07 Dec 2023
Combination and Permanent Impairment - "same injury or cause"
Return to Work Corporation (SA) v English and Williams V Return to Work Corporation (SA)  SASCA 125
The Court of Appeal of the Supreme Court of South Australia has delivered a key judgment on the interpretation of what is meant by the phrase “from the same injury or cause” that is vital to the application of section 22(8)(c) of the Return to Work Act (the Act).
The importance of the interpretation means that, determining when injuries and impairments may be combined for the purposes of assessing any impairments, a broader approach needs to be considered i.e., it is not just the original trauma that needs to be considered in linking injuries.
The outcome of the two cases is that there will now likely be more matters where injuries can be combined which will increase the costs of claims when impairments are to be assessed.
It should be noted that in the case of English, the matter was referred to the Court of Appeal by way of a referral of a question of law pursuant to section 70 of the South Australian Employment Tribunal Act, that question being:
“On the facts as found by the primary judge, does section 28(8)(c) of the Act apply so as to require or permit the impairments to Mr English’s neck and his right quadriceps to be assessed together or combined to determine the degree of impairment of Mr English”.
The matter of Williams came to the Court of Appeal by way of an appeal from the primary judge and then from the Full Bench of the South Australian Employment Tribunal. The Full Bench took the view that the injuries should not be combined reversing the decision of the trial judge in the first instance.
As both cases required an interpretation of section 22(8)(c), they were heard together.
The key facts
The facts of the two cases demonstrate the need for a forensic examination of the causal link between the trauma and the initial injuries and the development of any subsequent injury, even if on the face of it, the injury appears to be due to a different trauma.
In English, the worker sustained a neck injury on 4 March 2019 in the course of his employment. Six days later, the worker sustained a further injury when he fell and injured his right quadriceps.
The link in this matter was that he was prescribed medication for his first injury and the unrefuted evidence was that the worker became lightheaded due to the medication resulting in the fall.
In Williams, the worker already had sustained a compensable right knee injury in 2013 while climbing scaffold at work. The initial complaint of pain was later diagnosed as a tear of the right medial meniscus with an underlying osteoarthritic condition. The tear was repaired by way of a surgical procedure, and he subsequently left that employment. Some twelve months later he resumed work with another employer. In May 2015, he began to experience pain in both the left and right knees when undertaking more physically demanding work. There was no particular incident or event that the worker could recall but he started to experience pain over a period of time i.e. gradual onset. This evidence was not challenged. Both knees eventually required a total knee replacement.
In English, the Court of Appeal delivered a majority decision, with Justices Doyle and Bleby agreeing that the injuries could be combined. Chief Justice Kourakis was in dissent.
In Williams, the Court was unanimous that the left and right knees should be combined.
To dissect the two key opinions in this matter would not do service to judgments of Chief Justice Kourakis who delivered the minority decision, and Justice Bleby.
Suffice to say that the scope of section 22(8)(c) does require a broader view that a reference to the concept of “from the same trauma” as previously was the case under section 43(6) of the Workers Rehabilitation and Compensation Act.
The question in English and Williams was how much broader?
Justice Bleby emphasised in the end of a detailed analysis of the case law that (at para 139):
“In my view, it is neither possible or appropriate to be any more prescriptive than Stanley J in Summerfield. In determining whether the impairments are to be combined under s22(8)(c) in assessing an injured worker’s WPI, the issue is whether the impairments are “from the same injury or cause”. 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 these explanations possess the requisite sameness. This requires an evaluative assessment of the causal explanations, and in particular any difference 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 that the impairments cannot be said to arise from the same injury or case.”.
One may query whether such a process is necessary or important.
Let’s take the facts of the English case as an example. If the two injuries were treated as separate and discreet injuries and, in the end, separate impairment and assessing the WPI on a hypothetical basis, the entitlement may be as follows:
10% for the neck
10% for the right arm quadricep.
Noting that both injuries occurred in 2019, the workers section 58 entitlements would be:
$22,511 for the neck, and
$22,511 for the right arm.
In the alternative, if the aforesaid injuries are then treated as arising from ‘the same injury or cause’, the entitlement would provide a combined impairment of 19% WPI (after applying the combined values chart) with the monetary lump sum entitlements being $46,229.00.
This represents a difference in total lump sum entitlement of entitlement of $1207.00 when comparing a separation of the impairment with a combination.
However, once you come to apply the section 56 formula, you are looking at a difference in the prescribed sum of $44,811 for one 10% entitlement as opposed to a combined figure of 19% that is $147,119.
In terms of undertaking any evaluative test we note that Justice Bleby provided the following comment (at para 140):
“I see no difficulty in adding that the evaluative assessment will be informed by common sense, as long as it is understood that this is not to suggest that common sense is the criterion or touchstone by which the requisite sameness is to be determined. Equally I would add that the evaluative assessment is to be approached in a practical manner focusing upon the substance of the causal explanations for the relevant impairments. It is not to be approached in a manner that is overly technical or artificial.”.
It is hardly surprising that His Honour came back to the gravamen adopted in most cases in stating that “the evaluative assessment should be approached … through the application of that subsection to the facts of particular cases” (at para 141).
When one does review the facts of each case it is perhaps understandable the Court of Appeal concluded as it did in Williams and, after all, this was a unanimous decision. The decision of the trial judge in the first instance was very detailed and conscious of the need to establish the cause of the 2015 knee injuries.
However, the English matter does pose an interesting contrast in approaches with the Chief Justice not being satisfied that that the introduction of the medication was sufficient to join the dots. Clearly the majority thought it was.
In any case, the issue of “combination” will continue to require a forensic analysis of the injuries and the resulting impairments to ensure that the compensation is fair and reasonable and achieves a balance between the interests of the worker and the employer as required by section 3 of the Act.