Important information for employers – A recent SA Full Supreme Court clarifies Return to Work transitional provisions

13 December 2017

The South Australian Supreme Court has disallowed a regulator to exclude an injured worker from the workers’ compensation scheme via a deeming provision.

In December 2014, an employee at Allies Mills Pty Ltd broke her arm at work and had surgery to mend it. She received weekly compensation until she resumed her full-time duties two months post operation in February 2015. She had a further operation on 31 July 2015 in which she was wholly incapacitated for three weeks.

ReturnToWork SA rejected her bid for weekly payments, but a full South Australian Employment Tribunal (SAET) upheld her claim. ReturnToWork then appealed to the Supreme Court which brings us to the proceedings at hand.

The issue on appeal was an interaction between the transitional provisions in Part 10 to Schedule 9 of the Return to Work Act 2014 (SA) (The Act) and s 7(6) of the Act. In particular, whether a worker, who had an original injury compensable under the (repealed) Worker’s Rehabilitation and Compensation Act 1986 (SA), who, following the commencement of the Act (on July 1, 2015) underwent surgery as a consequence of that injury, resulting in incapacity to work, is entitled to weekly payments in respect of that incapacity.

The regulator argued that the SAET erred in finding that the worker’s incapacity from her August 2015 surgery was a “new” rather than “existing” injury and submitted that if any injury resulted from the surgery it was, by virtue of s 7(6) of the Act, to be taken to constitute part of the original injury because “s 7(6) provides that an injury attributable to surgery for a compensable work injury constitutes part of the original injury”. Thus, as clause 37(6) of the Transitional Provisions excludes any further entitlement to weekly payments for existing injuries, she was not to be entitled.

However, the full bench dismissed ReturnToWork’s appeal, unanimously finding that s 7(6) was in fact a deeming provision because it was not designed to determine whether the Act applied to an injury.

s 7(6) of the Act does not speak to the definitions of ‘existing’ and ‘new’ injury in the transitional provisions” said Chief Justice Kourakis, instead “the purpose of s 7(6) [of the Act] is to determine the rights and obligations relating to the payment of compensation for original work injuries in narrow and specific circumstances”.

Resultantly, Justice Tim Stanley held that that worker’s August 2015 surgical injury was a “new” injury because it was “not solely attributable to a trauma pre-dating the Act” and therefore the new Act applied and clause 37(6) did not apply, granting the worker her further entitlements.