December 2024 Newsletter and Cases Update

INTRODUCTION

Welcome to our latest and last Newsletter and Case Update for 2024, where we aim to keep you up to date with all that is happening in the law affecting workplaces, and with what we have been doing here at KJK Legal.

KJK Legal firm update and news

Save the Date – KJK Legal’s next seminar

Wednesday, 26 February 2025 is the date set for our next in-person seminar, again being held at the Majestic Roof Garden Hotel.  We’re busy working behind the scenes putting together the topics of interest and have now finalised our guest speaker.  Further details will be announced in the new year.  In the meantime, remember to flag this date in your calendar!

Summary of amendments to the Return to Work Act

Commentator: Suzana Jovanovic and Tracey Kerrigan

There are a number of changes to the Return to Work Act which came into effect on 1 December 2024.  A large part of this relates to section 18 and the obligation to offer suitable employment.  Further clarity has now been provided for dust disease matters with respect to calculation of average weekly earnings and when a work injury in this context is considered to have stabilised so that the claimant can pursue a Permanent Impairment Assessment (PIA).

Dust Disease amendments

For employers dealing with dust disease claims such as asbestos related conditions or silicosis, you may have experienced challenges in terms of assessing a worker’s permanent impairment because those conditions can be terminal which means they are unlikely to ever reach Maximum Medical Improvement (MMI).  Even for conditions that are not terminal, the condition may gradually deteriorate over time making it difficult to assess when the condition is ‘sufficiently stable’ to make an assessment.  The ‘one assessment’ rule can be a disadvantage to a worker suffering these progressive type illnesses.

The Act now provides an exception to this “MMI” requirement for workers with prescribed terminal illnesses/conditions and instead now requires such injury/condition to be ‘stabilised’.  A work injury in this context is considered to have ‘stabilised’ if the worker’s condition is unlikely to change substantially in the next 12 months with or without medical treatment.

This would in turn allow a worker suffering with a terminal dust disease condition to undergo a PIA even though their condition may continue to deteriorate.  The amendments still only allow for one assessment which still makes it ‘tricky’ for a worker to decide if and when he should undertake an assessment.

There are also changes to the average weekly earnings provisions pertaining to dust disease matters where exposure/injury may occur much earlier than when the claim is made, and which can otherwise result in anomalies in the way average weekly earnings are calculated.

Section 18 amendments

The more far reaching amendments are those to section 18 of the Act which expand the obligation to offer suitable employment and affect labour hire employers, host employers and self-insured employers.

Host employers “must” now co-operate with labour hire employers who are obligated to provide suitable employment to a worker by participating in the recovery and return to work process.  Whilst the provisions state that nothing requires a host employer to enter into an employment relationship with a worker, the reality is that if you are a larger employer that regularly uses agency staff for instance to cover staff shortages (i.e. labour hire employees), then you might be asked to provide suitable employment to that labour hire employee if they suffer injury whilst working at your business, even if they were there for only one shift.

Furthermore, self-insured employers who are a group comprising related bodies corporate are now obligated to provide suitable employment duties.  That can cause issues for groups where the members of the group have very similar businesses e.g. retail.  Can an injured worker use these provisions to force a transfer to one of the other businesses that they might see as more convenient to work for?

Similarly, the duty will also extend to employers which are an agency or instrumentality of the Crown as they are taken to be registered as a self-insured employer. However, it is unclear whether this relates to employees of a designated agency or whether it only relates to state government employees.  Despite this ambiguity, one would still need to consider whether it is reasonably practical to offer suitable employment to the injured worker.

As many of you know, workers have a right to claim costs at the end of a dispute at the South Australian Employment Tribunal from a self-insured company or the Corporation.  The amendments now enable employers to claim costs in the same manner if they are involved in a section 18 dispute.

There are a lot of practical ramifications to these amendments, for example, if you are the “host employer” do you provide early intervention, who is providing the rehabilitation and return to work services, is it a provider you would normally use and who would be familiar with your workplace/availability of duties/numbers of other staff at that site who may already have restrictions in place.

Who is responsible to pay the injured worker whilst performing duties for the “host employer’’ or are they simply paid income support by the compensating authority and their contract of employment is suspended whilst doing so?

What if the injured worker has ‘permanent restrictions’ in place, is the host employer obliged to offer duties long term?

Some of these questions may ‘boil down’ to reasonable practicability – is it reasonably practicable for the host to offer suitable employment in any particular situation?

No doubt over the coming months these issues may be adjudicated.

Work Health and Safety Update

Commentator: Suzana Jovanovic

South Australia’s new industrial manslaughter laws came into effect on 1 July 2024. In summary, industrial manslaughter is a criminal offence that applies when:

• an individual/body corporate has a health and safety duty;
• an individual/body corporate breaches that duty; and
• the conduct (which is reckless or grossly negligent) causes the death of a person to whom the duty is owed.

Recklessness is a higher standard as it requires the individual/body corporate to turn their mind to that substantial risk and proceed with the conduct whereas gross negligence does not require any mental element to be proved.  Being a major indictable offence, individuals who are found guilty could face up to 20 years imprisonment and body corporates could face penalties of up to $18 million.

The new industrial manslaughter laws do not apply retrospectively and will be prosecuted without a limitation period.  However, we might see ‘historical’ industrial manslaughter matters being prosecuted in the future when it comes to dust diseases such as silicosis.  Such causative events may occur this year, but the disease may not manifest itself or death may not result for a decade or more.  So, if a prosecutor can link the causation of the death to the breach of the duty in the workplace then perhaps we might see some matters being prosecuted retrospectively.

Other changes include a prohibition of insurance and indemnities for penalties imposed under the Work Health and Safety Act.  In other words, insurance companies cannot offer contracts which purport to indemnify employers/defendants against serious criminal penalties for breaches of workplace laws such as industrial manslaughter offences.  This is a particular prohibition to indemnify for penalties that may arise from the employer’s/defendant’s actions and is different to insuring/indemnifying someone for their legal fees for representation.

There are also new regulations pertaining to the management of psychosocial hazards at work.  It can be difficult to identify and eliminate psychosocial hazards because unlike physical risks, they are not always observable/tangible unless an employee expresses that he/she is being bullied for instance and the employer fails to take any action.  If an employer is unable to eliminate a psychosocial risk, they should try to minimise it because such hazards (e.g. prolonged sustained job demands, low job control, lack of role clarity, bullying etc) can build accumulatively over time if they are left unaddressed.

If an employer leaves these issues unaddressed then it could lead to a work related response which occurs when the demands placed on an employee exceed their capacity to meet those demands resulting in adverse cognitive, emotional and physical reactions/harm.  Examples of psychological harm include a diagnosis of depression, anxiety, PTSD or burn out which an employer may be able to identify if they notice an employee being unusually cynical, self doubtful, or exhausted for instance.  However, there can also be a link between psychosocial risk exposure and physical harm.  Examples of such physical harm could include heart issues or musculoskeletal disorders.

Turning to industrial manslaughter again – if an employee’s death can be connected to a psychosocial risk which is left unaddressed in a workplace, then it could expose the employer to potentially being prosecuted for manslaughter.

If you are an employer who needs advice on any WHS matters, please reach out to us.

Recent decisions from the South Australian Employment Tribunal

Roumbos v Royal Automobile Association of South Australia Inc. [2024] SAET 88

Topic: Discontinuances and procedural fairness

Commentator: Chrissy Psevdos

Background

The worker sustained a compensable injury in the course of his employment on 21 June 2021 and his claim was accepted for ongoing weekly payments of income support on 28 June 2021.

The respondent discontinued the worker’s entitlement to weekly payments of income support on 24 December 2021 in accordance with s48(2)(b) of the Return to Work Act 2014 (RTW Act) based on a certificate of Dr Wong dated 24 December 2021.  The worker challenged the decision.

As part of the dispute proceedings the respondent filed a statement of issues and contentions wherein it justified the basis for the discontinuance in accordance with s48(2)(b) of the RTW Act but also provided an alternative basis for the discontinuance, alleging that the worker had breached the obligation of mutuality.

Issues

The issues heard in a preliminary hearing were as follows:

• In the absence of an order made pursuant to s65 of the South Australian Employment Tribunal Act 2014, does the Tribunal have jurisdiction to consider anything other than the cessation of incapacity for the purposes of determining whether or not the respondent’s decision was correct, or otherwise?
• In the absence of an order made pursuant to s65 of the South Australian Employment Tribunal Act 2014, does the Tribunal have jurisdiction to consider anything other than the cessation of incapacity for the purposes of determining whether or not the respondent’s decision was correct, or otherwise?
• Is the Tribunal jurisdictionally entitled, if not required, on fair notice to the worker prior to a trial, to consider the conduct of the worker so as to determine whether the respondent was entitled to discontinue payments in accordance with s48(3)(d), (e), (f) or (g) of the RTW Act?

Held

The trial Judge considered Deputy President Judge Rossi’s approach in the matter of Piontecki v RTWCSA [2023] SAET 92 wherein he concluded that the scope of the proceedings was defined by the subject matter of the dispute.  The trial Judge noted that the issues to be raised concerned a discontinuance under s48 of the RTW Act and therefore was a hybrid provision.

He determined that s48 was firstly designed to protect a worker’s entitlement to weekly payments of income support from arbitrary discontinuance and secondly, designed to ensure a worker understands the basis upon which the discontinuance is predicated.

He concluded that on hearing de novo following the worker’s application for review, the Tribunal was required to determine whether on totality of the evidence there has been a cessation of incapacity versus whether it should be satisfied that based on a recognised health practitioner the worker had ceased to be incapacitated.

Further, the trial Judge determined that the compensating authority did not have complete freedom to act as it wished.  It needed to achieve the objects of the RTW Act and in this matter that was to act upon an alternative basis for a discontinuance of weekly payments if one existed for as long as the interests of procedural fairness had been satisfied.

Key Takeaway

With proper notice of the basis of a defence to the claim provided, in order for an applicant to have ample opportunity to defend themselves, it is open for the compensating authority to introduce an alternative basis as to its defence of a claim as long as the applicant is not disadvantaged or prejudiced.  The right to argue lack of procedural fairness or estoppel remain available.

It is also important to note that the ambit of s48 remains a holistic consideration as to whether a worker is entitled to continue receiving their entitlements or not.

A link to the full text of the case can be found here.

Lauren Vercoe v Local Government Association Workers Compensation Scheme [2024] SAET 91

Topic: Compensability – Injury occurring whilst working from home

Commentator: Tracey Kerrigan

It is somewhat surprising that there have not been more WFH claims made.  It is an issue that causes some concern when you transfer the working environment to the home environment where WHS issues/requirements may be less stringently enforced.

Background

The worker suffered an injury when she fell over a metal pet fence erected to keep a puppy that she was caring for separate from a pet rabbit.  Whilst taking her usual coffee break the worker tripped over the pet fence and suffered a right knee injury and humerus fracture.

The worker was clearly permitted to work from home – in fact it was a practice that the employer had willingly embraced.

It was clear that the worker was on an authorised break and that her home was in essence her place of employment on that day.  The employer was not aware of the pet fence having been erected and had she been at her office there were no such fences erected at the Council’s office.

The Acting Magistrate, Carrel was satisfied that the worker was at work and taking a coffee break was a likely act of an employee during the course of their working day.  The injury arose in the course of employment.  The physical workplace hazard, i.e. the pet fence, was an important or influential cause of her fall.  Accordingly, the injury was compensable.

Key Takeaway

Transferring the place of employment from the office to home can put a worker at more risk of injury as there are hazards in the home that may not be present.  Although Council had a working from home safety checklist this type of hazard was not contemplated but it was present in the workplace and contributed to the worker’s injury.

A link to the full text of the case can be found here.

Return to Work Corporation of South Australia v Stewart & Anor [2024] SAET 92

Topic: Prejudice and section 30 of the RTW Act

Commentator: Oliver Fragnito

Background

Ms Stewart (the worker) had a fall at work on 21 November 2021.  Her claim for a soft tissue injury to her right ankle was accepted in December 2021.  During 2022, claims for other injuries she says were sustained in the November 2021 fall were made and rejected.  These injuries are right elbow, right hip, right wrist and right knee.

Some of the injuries alleged by the worker were not claimed until 6 September 2022, 10 months after the fall in November 2021.

Issue

An order was made on the request of the worker that RTWSA provide an explanation of the prejudice it asserts it has experienced by reason of the claim being made whilst statute barred in correspondence within 14 days.  RTWSA applied to set aside the order.

Section 30(1)(b) of the Return to Work Act 2014 (the Act) provides, that a claim must be made within the prescribed period which is defined in section 30(1) to be “6 months commencing on the day on which the entitlement to make the claim arises.”

It is not a bar to making a claim if the proper determination of the claim has not been substantially prejudiced according to section 30(3)(a)(i).

The worker made submissions to the effect that RTWSA has an evidentiary onus to prove that the making of a determination has been substantially prejudiced, and asserted that her claims are not statute barred as they were made within six months of her incurring medical expenses.

RTWSA referred to the decision of Orlovic v GM Holden Ltd [2018] SAET 66, where the Full Bench held that the applicant ‘carried the onus of establishing the matters that would displace that bar’ as Doyle CJ observed in Kleinrahm v South Australia Health Commissioner [1998] SASC 6562.  Furthermore, they submitted that any order was premature as the worker had not yet given evidence or filed/served a Statement of Issues or Contentions, and therefore the requirement to detail any prejudice if the dispute proceeds is unnecessary.

Test

His Honour considered the decisions of Parkwynd Private Hospital Pty Ltd v Wilson (1971) 1 SASR 552, Kleinrahm and Orlovic and looked back to section 52 of the 1986 Act and said that there no material difference in the language of the relevant sub-section of the two provisions that is capable of producing a different result on these facts.

Essentially a claimant/worker must displace the bar in section 30(1)(b) of the Act before an evidentiary onus applies to a compensating authority or employer to show that proper determination of the claim has been substantially prejudiced.  If the claimant/worker has not produced evidence that the claim has not been prejudiced, the compensating authority is not required to detail any such prejudice.

Key Takeaway

Unless the worker/claimant has led evidence that the determination has not been prejudiced, or to establish when the prescribed period ended in relation to a worker’s/claimant’s individual claim in the context of section 30, the onus cannot fall onto the compensating authority to detail any such prejudice.

This is helpful to employers who assert prejudice has been caused by late claims being made, well after the prescribed period has ended (a common occurrence in the noise induced hearing loss space).

A link to the full text of the case can be found here.

Empire Liquor Pty Ltd v Return to Work Corporation of South Australia & Anor [2024] SAET 93

Topic: Adjudication of costs

Commentator: Suzana Jovanovic

Background

The costs claimed by the worker’s solicitor were opposed by the Corporation.  The matter involved three disputes at the South Australian Employment Tribunal which required the worker’s solicitor to produce a detailed Affidavit on behalf of her client.  However, the time spent and costs incurred to prepare the Affidavit were significant.

The worker’s solicitor was claiming about 20 hours in total for the work done on the Affidavit.  Specifically, she claimed 6 hours for reviewing and executing the Affidavit and 14 hours for preparing the Affidavit.

The worker’s solicitor was also claiming $1,176.15 for the time taken to calculate the Work In Progress (WIP) report and a further $1,253.84 for the ‘additional costs associated with the adjudication’.

Issues

• Whether the worker’s claim for costs with respect to the Affidavit was excessive?
• Whether the worker’s solicitor is entitled to costs incurred to generate a WIP report?
• Whether the worker’s solicitor could claim the additional costs associated with the adjudication?

Held

The costs claimed with respect to the Affidavit were excessive.  The judge held that 10 hours to prepare the detailed Affidavit and 2 hours to review it would be sufficient.

Solicitors claiming costs are required to maintain a reliable record of the costs being sought and they have a responsibility to present such claim with sufficient detail.  The worker’s solicitor was therefore not able to claim for the time taken to calculate the WIP report.

The judge also was unable to justify the amount claimed in association with the adjudication as there was no basis for the claim and no explanation as to how the amount was arrived at.

Key Takeaway

It is useful to obtain a WIP report from the party claiming costs particularly where the matter is complex or has been on foot for a prolonged period.  It helps you make an informed decision about the claimed amount and potentially with reducing items substantially as was the case here.

A link to the full text of the case can be found here.

Williams v Return to Work Corporation of South Australia [2024] SAET 95

Topic: PIA assessment / IMA – form of referral

Commentator: Tracey Kerrigan

Background

The worker challenged her PIA assessment carried out by Dr Reiter who assessed the worker at less than 5% WPI for a left knee and lumbar spine injuries.  The parties appear to have agreed without the need for a trial that Dr Reiter’s assessment was not compliant.  Judge Rossi confirmed that he had a number of concerns about the assessments provided.

The parties agreed to a referral to an IMA but disagreed on the form of the referral and the information to be provided to the IMA.  The main issue in that regard related as to whether the IMA should be directed to consider a deduction for prior impairment.

In terms of the MMI issue, Judge Rossi was not persuaded that there was a need to raise this with the IMA.  In terms of the issue of a deduction for prior impairment, Judge Rossi felt that the IME should not be directed to consider a deduction as that may imply that the SAET thought that a deduction should be made.  But the IMA should be informed of the issue, namely the relevance of pre-existing degenerative changes to the lumbar spine, and whether any of the impairment assessed arises from a pre-existing condition that needs to be deducted.  Whatever the conclusion the IMA was to provide the reasoning that led to it.

Key Takeaways

The Tribunal provides the referral in consultation with the parties but is not obliged to put to the IMA specific terms that the parties might consider necessary.

A link to the full text of the case can be found here.

Hussain v Return to Work Corporation of South Australia [2024] SAET 98

Topic: Whether the Tribunal is empowered to order that a worker attend a medical examination to obtain medical expert opinion

Commentator: Chrissy Psevdos

Background

The worker has some compensable injuries sustained in the course of his employment with the Carisbrook Collision Repair Centre and others which are in dispute.  The parts of the body claimed to have been affected and the diagnoses include the right shoulder, the left shoulder, right hand and wrist, xerostomia and deglutition claimed to be due to medication prescribed to treat work injuries, liver dysfunction (fatty liver), which has been claimed as a consequential injury to the right shoulder injury, a complex regional pain syndrome of the right wrist, the neck, upper back, right bicep and his lower digestive system which he also attributes to medication prescribed to treat his work injuries.

He also claims to be suffering from sleep apnoea attributable to his other claimed work injuries.  He attributes his claimed work injuries and claimed resultant impairments to a fall at work on 1 May 2020.  In addition to the physical injuries the worker asserts that he suffers from a psychiatric injury.

On 21 March 2024 the worker made an application pursuant to s21(3) of the RTW Act to be taken as in interim seriously injured worker.  The respondent arranged for the worker to be examined by Dr Champion for the purposes of determining the application and in accordance with s31(2) of the RTW Act.  The worker refused to attend.

The respondent consequently rejected the s21(3) application, and the matter is before the Tribunal.

By application for directions the respondent compensating authority sought an order that would require the worker to attend a medical examination arranged by the respondent with Dr Gary Champion for the purposes of confirming a diagnosis of CRPS in accordance with chapter 2.22 of the IAGs.

Issues

The worker argued that the attendance was not in the interests of justice and that there was neither an express or implied statutory power vested in the Tribunal to make an order compelling attendance at a medical examination against ones wishes, nor is there a valid rule that would confer such a power.

In the alternative, the worker argued that if the Tribunal did have the power to order the examination, jurisdiction could not be exercised where the object of the assessment was to seek an opinion as to permanent impairment where the worker had already been assessed in accordance with s22 of the RTW Act.

Held

There is an implied power conferred the South Australian Employment Tribunal Act (SAET Act) that r213 of the SAET Rules is a valid exercise of the rule making power conferred by s92 of the SAET Act.

Subsection 31(2) of the RTW Act expressly empowers the Compensating Authority to arrange a medical examination in order to determine a claim for compensation.  The worker refused to attend the examination with Dr Champion in the first instance and therefore the Tribunal, in reviewing the decision which determined that the worker is not to be treated as a seriously injured worker on an interim basis, is empowered to either affirm, vary or set aside the decision being reviewed.  Associated with that power is the power to order that the worker attend to the examination at a later date, otherwise the relevant power to require an attendance at an examination for the purposes of determining a claim on its merits would be rendered ineffective.

His Honour, Deputy President Judge Rossi determined that the onus is on the party seeking the examination to persuade the Tribunal that its intervention is reasonably required in the interests of justice.

The factors to be taken into account in the exercise of discretion will include:

• Whether the compensating authority exercised the power conferred by s31(2) of the RTW Act to have the worker examined prior to the determination of the claim and, if it did, whether there has been a material change in circumstances so as to require a further examination.
• The issues to be determined at trial by the Tribunal and whether the examination requested is reasonably required in order for the party to be able to properly present its case.
• Any likely adverse impact upon the worker if the examination is to proceed.
• The nature of the examination to be conducted.
• The reasonableness of the arrangements made including the date, time and location of the scheduled examination and the identity of the proposed examiner.

It is important to note that this is not an exhaustive list, and the totality of the relevant circumstances are to be considered on a case-by-case basis.

In consideration as to whether the compensating authority is able to seek an opinion pertaining to chapter 2.2 of the IAGs his Honour considered the decision in Clayton Church Homes Incorporated v Return to Work Corporation of South Australia and Orphanou [2019] SAET 113 and the finding of Calligeros DPJ that there may be a relevant diagnosis for the purposes of verification by more than one examining physician outside of the twelve months leading to the permanent impairment assessment but the requirement that the diagnosis must have been present for at least one year relates to the twelve months period immediately prior to the assessment.

His Honour concluded that the worker should be required to attend the scheduled appointment with Dr Champion in relation to the claimed injury of CRPS and was directed to cooperate with the examination process and not hinder it.

Key Takeaway

Whether the Presidential Members of the Tribunal will ultimately exercise their discretion to order that someone attend a medical examination will depend on whether the party seeking the examination is able to persuade the Tribunal that its intervention is reasonably required in the interests of justice and will be determined on a case-by-case basis.

A link to the full text of the case can be found here.

As always, should you have any queries, feedback, or comments on anything we have discussed above, or advice on any workplace legal needs, then please do not hesitate to reach out to one of us.