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Case Summary – RTWSA v Preedy [2018]

RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v PREEDY [2018] SASCFC 55

The worker injured his left shoulder in the course of employment in 2012. While undertaking physiotherapy treatment for this injury, he sustained a neck injury on 16 April 2013. Both claims were accepted.

The issue before the Court was whether the two injuries should be combined for the purposes of assessing the worker’s degree of whole person impairment (WPI).

Section 22(8)(c) of the Return to Work Act 2014 (the Act) provides, when considering combination of multiple impairments:

22-Assessment of permanent impairment

(8) An assessment must take into account the following principles:

(c) impairments from the same injury or cause are to be assessed together or combined to determine the degree of impairment of the worker (using any principle set out in the Impairment Assessment Guidelines);

Section 58(6)(a) provides:

58-Lump sum payments-non-economic loss

(6) If a worker suffers 2 or more work injuries arising from the same trauma-

(a) the injuries may together be treated as 1 injury to the extent set out in the Impairment Assessment Guidelines (and assessed together using any combination or other principle set out in the Impairment Assessment Guidelines);

The Full Court considered that if a worker suffers more than one impairment from the same injury or cause, those impairments are to be assessed together or combined to determine the degree of impairment in accordance with Section 22(8)(c).

The Full Court stated:-

“However, the casual test propounded in s22(8)(c) can be demonstrated by way of illustration where a worker suffers an injury to her right knee at work which causes her to favour that leg with the result that the added pressure on the left knee causes injury to that knee. The worker suffers two separate impairments: one to each leg. Those impairments can be said to be from the same injury or cause, namely, the injury to the right knee. But even if the impairment to the left leg is not from the injury to the right knee, the impairment of the left leg can be said to have been caused by the injury to the right knee.”

The Full Court considered the matter of Marrone v Employers Mutual Ltd [2013] 116 SASR 501. Mr Marrone had suffered a right shoulder injury in the course of his employment and a result of overusing his left arm to compensate for that injury, he developed a left shoulder injury.

Whilst the Court concluded the latter injury arose as a result of initial injury, the Court’s application of Section 43(6) of the repealed Workers Rehabilitation and Compensation Act 1986 meant that combination would only occur when the injuries arose from one and the same trauma. The Full Court held that the worker’s injuries did not arise from the same trauma, meaning that the impairments would not be combined in determining WPI.

The Full Court in Preedy acknowledged that Marrone considered the proper construction of the expression “arising from the same trauma” in Section 43(6) of the Repealed Act and Section 58(6) of the current Act. However, it considered that in enacting Section 22, the legislature included provisions which were not in the Repealed Act. The Court considered that Section 22 is critical to the operation of the current statutory scheme.

This decision makes it clear that so long as two impairments are linked by the cause and effect principle, in that one causes the effects to the other, they are to be combined for the purposes of determining a worker’s degree of WPI.

Source: Duddy Shopov Lawyers