July 2025 Newsletter & Cases Update

Firm News

Team Member update

Claire Eagle

Administrative staff

We also welcome back our wonderful Legal Secretary, Irene Glapa, who recently took an extended (and well deserved) break.

Save the Date – KJK Legal’s winter seminar

Retirement of our Director, Neville John

Sponsorships

Save the Date!

SISA – Closing the Loop Conference

KJK Legal are proud to announce their ongoing sponsorship of the Self Insurers of South Australia (SISA) Closing the Loop Conference on Thursday, 18 September 2025.

More details are to come but in the meantime, do not forget to put the date in your diary and keep an eye on SISA’s website for further information as it’s released.

Both Sides of the Fence 2025

KJK Legal are proud to announce their ongoing sponsorship of the Both Sides of the Fence Seminar 2025 presented by The Society of Labour Lawyers (SA) on Friday, 21 November 2025.

Stay tuned for details of the 2025 program.  We look forward to seeing you all at that event as well later in the year.

Recent Decisions of the South Australian Employment Tribunal

Relan v Department for Correctional Services [2025] SAET 22

Topic: Evidence of subsequent injuries

Commentator: Lauren Knappstein

Background

The worker was employed as a prison guard by the Department for Correctional Services (the Department). The worker experienced a fall at work resulting in injuries to his left knee and elbow. The Department acknowledged this incident as a compensable work injury but limited compensation to a closed period. The worker developed further pain in his right shoulder and upper limb, which he alleges is as a result of relying significantly on his right side.

The Department rejected his claim for compensation for right-sided injuries based on medical evidence that the applicant’s right adhesive capsulitis was of idiopathic origin that was likely to have been caused by his diabetes. It also determined to discontinue his entitlement to weekly payments on account of his accepted left elbow injury on the basis that he was now incapacitated for work by a non‑work related injury.

Issues

• Was the worker entitled to extended worker’s compensation beyond the initially accepted closed period?
• What was the extent and duration of the worker’s injury and what was the impact on his ability to perform work duties?
• Whether the claim for the consequential condition met the statutory tests under the Return to Work Act 2014 (SA).
• Whether there was a link between the original injury and the claimed right sided symptoms.

Held

The Tribunal found that while the initial injury to the left knee and elbow was undisputed and compensable, the alleged consequential injury to the right upper limb was not sufficiently proven to be causally related.

The Tribunal did not accept that there was a medical or factual basis to extend compensation for a consequential right-sided injury and therefore upheld the decision of the Department.

Key Takeaway

The decision reflects a strict application of causation principles under the Return to Work Act 2014, requiring clear, persuasive evidence that subsequent conditions are directly related to an accepted injury.

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

Sean Luke v Department of Primary Industries and Regions [2025] SAET 24

Topic: Whether the trial Judge’s decision to seek the opinion of an IMA, the adequacy of his direction that the IMA does not take into account radiculopathy in assessing his cervical injury impairment and the material to be provided to the IMA was appropriate

Commentator: Chrissy Psevdos

Background

The applicant, a senior investigator for the Department of Primary Industries and Regions (the Department), suffered injuries to multiple body parts when he was thrown backwards into the air, before crashing to the steel deck with considerable force when the boat he was on hit a big swell.

Some of the injuries he sustained were accepted by the Department, and others were not.  While the applicant has several disputes before the Tribunal, the appeal concerned his s22 assessment of his injuries.

The applicant was assessed by Dr D’Onise, and his level of impairment was said to be a 70% WPI as a result of the combination of permanent impairments from the various physical injuries claimed and assessed as follows:

• Lumbar spine – 7%WPI;
• Cervical spine – 15% WPI;
• Left shoulder/ulna nerve/wrist – 26% WPI;
• Right shoulder/ulna nerve/wrist 32% WPI;
• Right hip/knee/foot 15% WPI;
• Left hip/knee/foot 8% WPI;
• Scarring 2% WPI.

The Department determined that the assessment of Dr D’Onise was non-compliant on the basis that he failed to disregard impairment from unrelated injuries or causes, or he failed to make deductions for impairments caused by previous injuries and that some of the alleged impairments did not arise as a consequence of compensable injuries.

The trial Judge directed that there be a referral to an IMA to assess the whole person impairment associated with the alleged permanent impairments to his lumbar spine, cervical spine, his left and right upper limbs, and his left and right knees.  In doing so he specifically directed the IMA not to make a finding of radiculopathy having stated that the applicant had the onus of establishing radiculopathy and that he failed to meet that onus.  In relation to the assessments of his upper limbs, the trial Judge directed that this be done by reference to a finding of a work injury of bilateral ulnar neuropathy injuries to each wrist and an injury to the left shoulder.

The applicant appealed the trial judge’s findings on the basis that there was an inadequacy of reasons for the referral to the IMA to be made, that the direction to the IMA that there was no radiculopathy was a denial of procedural fairness, and various errors of law.

Held

The Full Bench determined that the applicant’s contention that the referral to an IMA was not legally justified was without merit.  In relation to the question pertaining to the adequacy of reasons the Full Bench held that the trial judge identified credibility concerns regarding the applicant’s presentation to various doctor’s compared to what was portrayed in surveillance film and took a different view of the film than Dr D’Onise, and that view was desirable to obtain an opinion from an IMA to test this.

With respect to the direction that the assessment of the cervical spine was not to include radiculopathy, the Full Bench had some concerns as to whether the issue of this direction was legally permissible and opined that the trial judge erred in giving this direction. It was not a lawfully valid direction and must be expunged.

The Full Bench concluded that there was no error of law in exercising a broad discretion as to what material was to be provided to the IMA.

Key Takeaways

The Full Bench concluded that potential error, as opposed to actual error, provides a sufficient basis to make a referral to an IMA, with a view to either establishing or allaying concerns about that perceived error.

The Tribunal members are able to direct what material an IMA is to consider as part of the assessment of permanent impairment if the parties are unable to agree same.

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

Priolo v Return to Work Corporation of South Australia & Anor [2025] SAET 29

Topic: Journey injury claim

Commentator: Suzana Jovanovic

Background

On 15 April 2024 a pilates instructor who was engaged as a casual employee under a contract of employment (“worker”), decided to go for a 30 minute break/walk between two classes. She did not work and was not paid to work during this period. Towards the end of the walk and as she was crossing the road to retrieve her bag from her car, a cyclist collided with her. As a result of this incident, the worker suffered a number of serious injuries including a traumatic brain injury, a fractured C3/4 vertebrae, fractured cheekbones and a dislocated left shoulder.

Issue

• Whether the worker was engaged in a journey at the time of the accident?
• If yes to the above, was the journey undertaken in the course of carrying out duties of employment?

Held

The employer’s counsel submitted that the walk was not a journey, that there was “no real difference between this case and a sedentary worker going for a walk at lunchtime” and that the relevant journey provision “only covers injuries which occur in authorised breaks when a worker is at the place of employment during the break”. The Corporation adopted these submissions and amongst other arguments also suggested that a journey involves moving over some distance from one definite place/point to another.

The trial Judge turned to the ordinary everyday use of the word ‘journey’ and held that the worker was engaged in a journey when the cyclist collided with her.

The purpose for taking the walk was for the worker to keep warm but she needed to retrieve her bag from her car before heading back to the pilates studio. Whilst retrieving the bag is a work related reason, the circumstances did not rise to a sufficient level which would warrant this walk to be considered a journey undertaken in the course of carrying out duties of employment. On the worker’s own evidence, she exercised a personal preference to go for a walk rather than to stay in the studio or to attend the local café to stay warm. She was not subject to a direction from the employer to go for a walk. Therefore, ultimately the trial Judge held that the decision rejecting her claim should be confirmed.

Key Takeaway

A ‘journey’ does not require a worker to travel from one specific point to another and it does not require a worker to travel a specific distance from the place of employment and the location of an incident. 

It is understood that this matter has been appealed by the worker.

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

Smout v Return to Work Corporation of South Australia [2025] SAET 36

Topic: Whether entire impairment assessment is to be reassessed or whether reassessment on referral to an IMA referral should be limited to question of deductions

Commentator: Chrissy Psevdos

Background

The applicant, a health services manager who was employed by St John’s Ambulance Services from 2017 up to and including January 2022, has an accepted claim for an acute stress disorder which occurred in the course of her employment on 24 June 2020, together with further claims for psychological injuries, secondary to the medication prescribed for her acute stress disorder.

On being made redundant, the applicant submitted a claim for compensation for ongoing weekly payments and medical expenses. The claim was rejected by the respondent on the basis that the applicant was not a seriously injured worker in accordance with the provisions of s21(3) of the RTW Act.  The applicant disputed the decision.

She underwent the s22 process and was assessed for the purposes of determining her permanent impairment by Dr Ford, who assessed her with a 45% whole person impairment (WPI) but declined to make any deduction for any pre-existing or non-related impairments.

It was contended by the respondent that the assessment of Dr Ford was non-compliant on several fronts, including his failure to make a deduction for any pre-existing or non-related impairment.

It was agreed by the parties that the matter be referred to an IMA in accordance with s121 of the RTW Act but could not agree to the terms of the referral.

The respondent sought that the entire assessment be performed afresh, with the applicant contending that it should only be the question of the deduction to be made to the 45% WPI.

Held

Once it has been conceded that a permanent impairment assessment is non-compliant, and there is only one impairment being assessed, the inevitable result is that the entire assessment be re-done.

Key Takeaways

The trial Judge determined that to have one assessor determine the overall impairment for a psychological condition and another to determine whether a deduction is applicable offends the one assessment principle.

He referred to the source of the principle as noted in Abraham v Return to Work SA [2016] SAET 76 was not s22(10) of the RTW Act, but rather the wording of section 58(9) of the RTW Act and clause 17 of the IAG, neither of which have been the subject of amendment.

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

Brown v Return to Work Corporation of South Australia [2025] SAET 44

Topic: Whether the costs “are reasonably incurred in consequence of having suffered a work injury”

Commentator: Oliver Fragnito

Background

In July 2020 a worker sustained a compensable left thigh injury after falling bricks struck her damaging her saphenous nerve.

The worker was later referred to a pain specialist and recommended to undergo a trial of a subcutaneous implantation of a neuromodulation device.  The worker underwent an initial trial that did not have great effect but after a further trial there were positive results. The worker sought approval of a permanent implantation procedure which was approved by RTWSA in about August 2022.

In August 2024, the worker was involved in a motor vehicle accident, when another car failed to give way, driving into the left hand side of the worker’s vehicle.

Twenty minutes later, the symptoms in the worker’s left leg became significantly worse, and on the day of the accident the worker consulted with her GP who referred her back to the pain specialist.

It seemed that because of the accident, the neuromodulation device was not functioning properly and was damaged compromising its performance, leading to increased pain levels to the worker.

The worker claims the cost of surgery and the repair or replacement of the device should be covered by RTWSA and sought approval pursuant to s33(17) of the Act.

Issue

The test to determine whether the cost of surgery should be approved is provided by s33(1) of the Act.

The test is whether the costs “are reasonably incurred in consequence of having suffered a work injury”.

RTWSA rejected the worker’s claims to cover the costs of surgery on the basis that “the claimed costs is not covered by [the worker’s] benefits package as it was not reasonably incurred in consequence of [the worker] having suffered a work injury.”

RTWSA contended the motor vehicle accident caused the issues the worker is experiencing, and the accident should be seen as a new intervening event that has broken the chain of causation (novus actus interveniens).  RTWSA submitted that the previous symptomology has been rendered worse by the MVA, and absent the MVA, none of this further treatment would be required.

Held

Deputy President Judge Gilchrist held that the cost of surgery will be incurred in consequence of the worker suffering a work injury.

Had the worker not sustained the original work injury, she would not now need the further surgery.

Key Takeaways

Deputy President Judge Gilchrist provided commentary that the words of the Act do not import notions fundamental to the tort of negligence such as reasonable foreseeability.

The term ‘in consequence’ is less stringent than the common law test of causation. Curyer v Department for Child Protection [2022] SAET 26; Skinner v Return to Work Corporation for South Australia [2020] SAET 130, but is not to say that the test is no more than a ‘but for test’ Spencer v Wincanton Holdings Ltd [2009] EWCA Civ 1404.

If the worker was driving at high speed, reckless to her own safety and others, against medical evidence (acting grossly negligent), a case could be made that the compensating authority should not meet the treatment sought.

If the worker was walking, stumbled because of effects of the work injury damaging the device, the costs would be met as it would be seen to have been incurred in consequence of the original work injury.

This falls somewhere between the two, but in this case the latter.

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

Van Loggem v Return to Work Corporation of South Australia [2025] SAET 47

Topic: Process for the assessment of permanent impairment

Commentator: Suzana Jovanovic

Background

A worker with noise induced hearing loss and tinnitus underwent a permanent impairment assessment with Dr Corlette who initially assessed the worker’s Whole Person Impairment (WPI) at 5%. Subsequently, Dr Corlette provided a supplementary report assessing the worker’s WPI at 0%. The change in assessment related to a change in the audiogram relied upon (audiogram produced by the assessor vs audiogram performed closer to the retirement date). The worker asserted that the Corporation had interfered with the assessment by unilaterally communicating with the nominated assessor.

The drastic change in the assessor’s opinion was explored during the trial. Amongst other things, Dr Corlette could not recall whether he reviewed a letter from Audika, had no recollection of referring to an article in a report he produced and was questioned about passages in his supplementary report which related to a different worker. It came to light that the assessor had entered into a contractual arrangement with PIA Reporting whereby he would undertake the assessments but PIA Reporting’s secretarial staff would assist in preparing the report at first instance, without his input.

Issue

The main issue in this case was whether there should be a referral to an Independent Medical Assessment (IMA)?

Held

The practice adopted by the nominated assessor and PIA Reporting with respect to creating expert reports was concerning because such reports should be at least substantially based upon the expert’s specialised knowledge. The variability in the answers provided by the assessor and the possibility that a medical article cited in one of his reports was not completely read by the assessor were amongst a number of concerns raised by the trial Judge.

The trial Judge did not consider Dr Corlette’s assessment to be completely deficient. However, the Judge’s level of concern was enough to warrant a referral to an IMA. The Judge also held that the parties should be afforded an opportunity to be heard with respect to the scope of the referral, the questions to put to the Independent Medical Adviser and which documents should be provided to the adviser.

Key Takeaway

This case serves as a friendly reminder to avoid unilaterally communicating with a Permanent Impairment Assessor and to have the report peer reviewed if you have any concerns.

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