December 2022 Cases Update

News

Christmas wishes from KJK Legal

The team here at KJK Legal want to extend to you all our best wishes for a Merry Christmas and a safe and successful New Year.

We have appreciated your continual trust in us as your legal advisers this year, and we hope to continue to provide you with excellent service and advice leading into 2023.

We have appreciated your continual trust in us as your legal advisers this year, and we hope to continue to provide you with excellent service and advice leading into 2023.

As we approach the New Year, it is probably time to reflect on where we have come over the last 12 months.  Hopefully, what was described as the “new normal” will become second nature in the way in which we now conduct business, and relate with each other, so that the journey to where we now are soon becomes a distant memory!

What we have been up to at KJK Legal this year

Throughout the year we have been prominent in many ways within the workers compensation community, both in our support and attendance at external events (including the Closing the Loop and Both Sides of the Fence conferences), and conducting our own internal events, including seminars, webinars, and functions with our clients.

It’s always great to be able to catch up with clients when we can, now that our community is able to come together again to share insights and experiences for our mutual benefit.

Save the date for KJK Legal’s next webinar / seminar

We are excited to be partnering with our client Uniting Communities, and being able to showcase their wonderful new premises, at our first seminar/webinar in 2023.

We will be holding the event on 22 February 2023 from 3.30pm at Uniting Communities premises at 43 Franklin Street, Adelaide.  We’re sure some of you have already been able to familiarise yourself with their new premises, as they have been holding many community and industry events recently.

Our next event will be fairly broad based, as we want to utilise the full expertise of our team in presenting topics of interest to you that don’t just involve workers compensation, but also employment relations and work, health, and safety. An invitation for the event will be sent out to anyone on our contact list later in January 2023.  If you don’t believe that you are on our contact list, and want to receive an invite to the event, then please do not hesitate to contact us at admin@kjklegal.com.au. Otherwise, we look forward to seeing you again in February 2023, and please pass the invitation on to others in your organisation who might benefit from attending.  As always, our events are free!

KJK Legal’s updated Workers Compensation Precedents available soon

We have been busily updating our in-house workers compensation precedents, which a number of our clients and contacts utilise.  Our most current version, incorporating amendments arising from the 2022 Scheme Sustainability amendments, will be available in the New Year.  We are also in the process of updating a number of the SISA precedents, which as some of you may be aware, we also provide access to as well as our own in-house precedents.

As a reminder to those of you who do access our precedents, it pays to download required documents straight from the website portal when you need them, rather than a document you might have downloaded previously, in case you have not picked up on any amendment to the document we might have made in the interim.

A Deep Dive into Recent Hearing Loss Cases at the SAET

As we are always reviewing and tweaking our publications, we’ve decided to do something a little different this time round.  Firstly, we’ll kick off with Tracey Kerrigan’s deep dive into a succession of recent NIHL claims that proceeded to judgment at the SAET this year.  Then further below, we’ll present some bite size chunks of other cases where there’s something to quickly learn from the outcome.  Finally, we’ll mention a few cases that are bound for the Court of Appeal (the final arbiter on the workers compensation laws in this state) to see what they will be deciding upon in 2023.

Skuse v RTWSA [2022] SAET 56

Topic: Hearing loss – PIA assessment – audiograms

The worker’s claim for NIHL was accepted, and the issue was his entitlement to a lump sum.  Dr Baxter assessed the worker and noted a series of audiograms had been taken.  He also undertook an audiogram in 2021.  The worker had last been exposed to noise capable of causing NIHL when an audiogram was undertaken in 2015.

Dr Baxter chose to rely upon the 2015 audiogram as that was closest to the date of retirement.  His hearing loss had increased thereafter, but without any exposure to noise.

Despite the criticisms of President Judge Dolphin about serial audiograms and the relevance of Reg 67, in the earlier case of Macrae v RTWSA, Deputy President Judge Calligeros in this matter had no difficulty in accepting Dr Baxter could rely upon the earlier audiogram.  He indicated Reg 67 was not relevant to a permanent impairment assessment (PIA).  The judge considered Dr Baxter was qualified to decide which audiogram to base his PIA upon and was required to disregard losses that were not work related.

Key Takeaway

Review the PIA opinion in terms of the audiogram relied upon and consider whether the report is compliant in disregarding losses that may occur post-retirement or post the last exposure to noise.  Ultimately the assessor is probably the most qualified to decide that issue.

Bosnakis v RTWSA [2022] SAET 75

Topic: Hearing loss – Onus of proof

This case demonstrates the issue of the onus of proof.  The worker bears the onus to prove that he or she has been exposed to noise capable of causing noise induced hearing loss, and has suffered a loss as a result.  Once that occurs, if the worker has the benefit of the presumption in section 188(2), namely has brought their claim within 2 years of retirement or prior to retirement, then the onus shifts to the “last employer” to rebut the presumption and demonstrate such exposure did not cause hearing loss or did not occur.

The worker had suffered a significant hearing loss, but not all of it was noise induced.  He worked with Haneco between 2017 and March 2020, assembling and modifying lighting products.  He was working around power tools.  He had then worked as an electrician in his own business.

Paul Dewing undertook a noise survey, but conditions at the employer’s premises had changed.  So, at best his report contained estimates of the noise to which the worker may have been exposed.

The worker changed his story significantly in evidence.  Deputy President Magistrate Cole found the medical witnesses had relied upon an estimate by Mr Dewing, but this was not a sufficient basis for their opinion.  He found the worker had proven he was exposed to noise capable of causing NIHL, and the evidence led on behalf of the respondent was not sufficient to rebut the presumption.

Key Takeaway

Although noise surveys can be useful, if the work premises have changed and the amount of noise to which a particular worker may have been exposed cannot be accurately replicated, then reliance upon this type of evidence may be insufficient to rebut the presumption in s.188(2).

Hall v RTWSA [2022] SAET 129

Topic: Hearing loss – Onus of proof

This is an example of a case where the worker failed to discharge the onus placed upon him that his employment with Adhesive Labels was capable of causing NIHL.

The worker had extensive exposure to noise prior to commencing with Adhesive Labels in January 2012.  He worked operating a printing press.  He ceased employment in February 2020.

Mr Dewing also undertook a noise survey in this case.  It was accepted that the factory had remained the same.  The noise levels overall were less than 80dBA.

Dr Hunter had done a ‘desk top review’ (i.e. did not examine the worker) and concluded there was exposure to noise.  When the results of the Dewing survey were put to him, he suggested some people can suffer NIHL at levels lower than the usually recognised 85dBA.  There was no scientific backup for that assertion.

Dr Tomich had examined the worker in person.  The worker’s BHI was 4.7%.  He did not consider the work at Adhesive Labels was capable of causing NIHL.  There were also other medical explanations for his hearing loss.  He relied upon Mr Dewing’s noise survey.

Dr Tomich’s evidence was preferred.  Deputy President Judge Gilchrist found the worker had failed to establish that his hearing loss is noise induced, or that he was exposed to noise capable of causing NIHL.

Key Takeaway

A noise survey will be more reliable if it accurately reflects the work environment that the worker worked in.

An in-person review by an ENT is clearly preferable, and likely to be preferred by a judge if the matter proceeds to hearing.

A doctor who can cite scientific papers in support of their position stands a better chance of being accepted by the trial judge.  If you are asking a doctor to comment on matters within their expertise, ask them to cite the scientific evidence they rely on, and make sure you produce that evidence at trial!

Averay v RTWSA [2022] SAET 125

Topic: Hearing loss – Cause of hearing loss

The issue in this case was whether the worker’s hearing loss was due to exposure to noise or some other cause.

The worker had been employed by several employers.  He brought claims against Fencing World Pty Ltd and Advanced Labour Hire.  He had worked previously at GM Holden Ltd.  He had also undertaken self-employment as a lawn mower.  He had a minimal hearing loss but was still pursuing a claim for hearing aids.

RTWSA put forward a prejudice argument, due to the lapse in time since the worker had worked for Fencing World.  This was dismissed as not seriously argued.

Three ENTs (Dr Matison, Dr Corlette, and Dr Hains) provided reports.  Dr Matison thought exposure to noise was possible, Dr Corlette said it was probable, but gave no real justification for that, and Dr Hains could not really decide.  Only Dr Matison and Dr Hains gave evidence.

Ultimately, Deputy President Judge Kelly found the worker had not proven he had suffered NIHL.  As he had ‘failed at the first hurdle’, the Judge did not have to deal with the presumption issue.

Key Takeaway

Make sure you call the witnesses who supports your case, and don’t just assume the judge will “fill in the blanks”.

A quick summary of recent cases at the South Australian Employment Tribunal you need to know about

• Brown v Department for Education [2022] SAET 107

The SAET emphasised the fact that a Statement of Issues and Contentions filed on behalf of a party is now considered a significant document, and that a party’s case may stand to succeed or fail on the basis of what is identified in the Statement of Issues and Contentions.

• Ali v RTWSA [2022] SAET 110

A combination case, where the issue was where an impairment arising from two different causes (in this case medication taken to relieve pain from two separate compensable injuries) enabled combination to occur.  The SAET did not allow combination in such a case.  It is probably the one significant area where the whole issue of combination is not so straight forward for an injured worker/claimant.

• Sharma v RTWSA [2022] SAET 116

Following on from Ali’s case, the SAET again found in this case that medication taken to treat more than one compensable injury occurring at different times, meant the issue of combination for the impairment arising from the consumption of medication was not to be a matter of combination.  The lesson is to be always on the look-out for things that are not from the same “cause”.

• Whimpress v RTWSA [2022] SAET 123

Another example of where previous operative scarring must be taken into account when assessing later operative scarring, and in many cases involving bodily (as opposed to facial) scarring, the outcome can quite often be that there is no assessable difference in the level of the overall scarring, such that the worker does not get any further compensation.  The outcome in this case can be quite important, where impairments are borderline at about the level that tips a worker over into serious injury territory.

• Smith v RTWSA [2022] SAET 126

In probably an outcome that was not unexpected but is worth noting as being a consistent position held by the SAET for some time, the worker succeeded in having the cost of weight loss surgery covered under his claim, as preparatory surgery before operative treatment on his injured knee.  In this case the issue went one step further in that a hiatus hernia also had to be treated surgically before anything else could occur, and the SAET found that in all the circumstances, the proposed surgery to treat the hiatus hernia and by way of weight loss surgery were a “consequence”, in causal terms, of the injured worker’s knee injury and the need for it to be successfully treated, and so pre-approval for the extensive surgery was given.

• Draakesh v RTWSA [2022] SAET 133

In following on from the Whimpress, the worker who had a further surgical incision in the same area as a prior surgical incision did not get any extra compensation after it was held that the previous surgical scarring was a pre-existing impairment that needed to be taken into account and deducted, in order for the claimant to be appropriately compensated for the impairment attributable to the second surgical scar.

• RTWSA v Valentine and Karrara Hair and Beauty Centre [2022] SAET 134

In what is somewhat of a notorious case involving some extraordinary events at a staff party, there are some serious takeaways from the decision concerned.  In particular, if an activity, no matter how far-fetched or inappropriate, forms part of a worker’s employment or is undertaken at the direction or request of an employer, then a worker in coming within the exception of Section 7(7) of the Return to Work Act, must still also go back and show that employment was a significant contributing cause of their injury.

• Covino v RTWSA [2022] SAET 136

Again, dealing with the issue of surgical scarring, the SAET found that Section 22(8)(b) and (g) both require that any pre-existing impairment be taken into account when assessing impairment.  In this case, a neck scar suffered by the injured worker as a child needed to be taken into account when assessing scarring resulting from later amputation surgery to a finger.

• Barter v Local Government Association Workers Compensation Scheme [2022] SAET 137

As the Tribunal has been at pains to emphasise in the past, if a compensating authority decides to peremptorily determine to accept a claim based on limited information, but further down the track wants to change its mind and attempt to deny liability for the claim, then it is important to establish the facts and circumstances as to why the decision in the first place was made, i.e. that the period of incapacity might have only been expected to be a matter of a week or two but suddenly blew out to months, if not years.  If a compensating authority is going to make a decision to accept a claim on a limited basis, because it expects limited liability, then it is very important that comprehensive claim notes are made to that effect at the time the initial decision is made.

• Veide v RTWSA [2022] SAET 139

Assessment of carpal tunnel syndrome can be a fraught exercise when it comes to nerve conduction studies and then extrapolating those into a valid impairment assessment.  This case proves the point that there is quite often a level of variability in the symptoms described by an injured worker, and the outcome of nerve conduction studies over time.  What must be addressed is whether any potential variation in symptoms and findings is within what might be described as a reasonable level of variability, as opposed to a clearly significant differential pattern of findings.  In the latter case, it is much more likely that the whole question of a valid impairment assessment can be undermined.

• Morphett v Chief Executive, Department of Treasury and Finance [2022] SAET 143

While it might be considered obvious in some respects, the obligations under Section 18 to provide suitable employment are not something that are limited by the duration of the employment concerned.  Furthermore, as to what might be reasonable to provide by way of suitable employment is directed to the duties that might be available, and not the length of time a worker might have performed them in the past.

• Bullen v RTWSA [2022] SAET 146

While it is a highly technical decision concerning aspects of impairment assessment associated with neuropsychological problems, it is always important to understand the particular provisions of the Impairment Assessment Guidelines when dealing with various impairments, and that in some respects there may be a requirement for mandatory adoption of a third party’s opinion on a particular area of clinical assessment, as opposed to circumstances where that opinion only is required to be ‘taken account of’ and considered in the overall clinical assessment.

• Thiess Pty Ltd v RTWSA & Lambert [2022] SAET 148

An example of where an employer, very late in the piece, was seeking to have further medical assessments of an injured worker undertaken, where previously the claims agent concerned had already acceded to a number of requests by the employer in relation to the proceedings.  In this case, the SAET declined to grant the employer’s request, particularly based on the employer’s own Statement of Issues and Contentions (and we refer back to the first case we discussed above) and where there was no good basis to order that the worker attend yet a further assessment.  As a takeaway, always ensure you get your ducks in a row as early as possible, and not push your luck in endeavouring to have the SAET support any application you might bring to cover off any holes in your case very late in the piece, or agree to a course of action that sits outside the case already presented.

Important cases the Court of Appeal will be considering in 2023 – what’s coming!

A number of recent decisions of the Full Bench of the SAET have either been taken on appeal or referred for consideration by the SAET to the Supreme Court’s Court of Appeal.

It is anticipated those matters will be considered by the Court of Appeal in the first half of 2023, particularly with the continuing issue around combination of impairments one to be considered in a number of cases.

Those matters that are the subject of current referral are the following:

• Williams – where the worker suffered injuries to both of his knees as a result of what he said was the continuing pursuit of his normal working duties, which he asserted were either a single event or the same series of events of repeated work activities, which then constituted the same trauma for whole person impairment combination purposes.  The Full Bench of the SAET found the simple notion of “work activity” is too wide and nebulous to fall within the concept of the same thing or event from which an impairment or impairments result.  The Full Bench of the SAET seemed to consider the notion of ordinary work activity was not sufficiently specific so as to be able to identify a specific cause of each knee impairment.
• English – the worker had sustained a compensable neck injury.  For the treatment of that neck injury, he was prescribed medication which caused him to feel lightheaded.  This allegedly in turn led to him suffering a fall and injury to his right quadriceps.  The worker asserted the various impairments should be combined for whole person impairment assessment purposes.  The Trial Judge found the second injury arose only because of the consumption of medication as a result of the first injury and therefore the two injuries should be combined.  The Full Bench of the SAET reserved a question of law for the determination by the Court of Appeal, as to whether the two injuries should be assessed together and combined.  It appears there is to be ongoing teasing out of the effects of the Summerfield decision well into next year, and it may be some time before we are able to get to grips with the full range of possible combination or non-combination facts and circumstances that will apply to impairment assessments.
• Vormelker – in this case the worker asserted the mere carrying out of his usual duties, which involved some walking, was of a sufficient reason to find that injuries sustained while undertaking that walking were compensable.  The Full Bench of the SAET found that without more, the mere fact of the walking did not establish that employment was in a “real and meaningful sense” responsible for the worker’s injury.  In other words, what was the result of a relatively benign or ordinary action, which was uninfluenced by the physical surroundings in which an injury might occur, will not result in employment being considered to be a significant contributing cause.  One queries whether the Full Bench’s decision will be upheld, because there are many activities such as standing up and sitting down where knee injuries occur, which might also be considered to be relatively benign or ordinary.
• Jackermis – this matter deals with the question of what a new injury is for the purposes of Section 56(6) and whether there must be some form of connection between an original injury and a later injury, such that the deduction provisions in Section 56 apply.  The Full Bench of the SAET gave a narrow definition to what constitutes a “new work injury”, insofar as that it should only be an injury that is somehow related to the prior injury, such that the deduction provisions apply, as opposed to sustaining a completely separate and new compensable injury at a later point in time.

Wrapping everything up

Enjoy the break.  We sure will.  See you in 2023!

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As always, if you’d like to seek any further advice on the issues that we have identified above, then please do not hesitate to contact us.

If you wish to undertake further reading in relation to any of the decisions discussed, they can all be found at www.austlii.edu.au.

Mark Keam – Editor