In this case, the Supreme Court of South Australia (the Court) considered the circumstances under which impairments can be combined for the purpose of permanent impairment assessments.
The Court was required to consider section 22(8)(c) of the Return to Work Act 2014 (SA) (the Act), which provides that: An assessment must take into account the following principles… impairments from the same injury or cause are to be assessed together or combined to determine the degree of impairment of the worker. In doing so, the Court found that impairments can be combined where they arise from the same trauma or the same injury or cause.
The words ‘same injury or cause’ are largely responsible for broadening the scope of the provision as these words allow for consideration of injuries that have developed after the initial trauma (e.g. a left arm injury caused by overuse of the left arm after a right arm injury sustained six months prior).
The case is important for both the Compensating Authority (Return to Work SA), employers covered by the Scheme and self-insured employers alike as, by combining impairments, there is a greater likelihood that a worker will meet the threshold to be deemed a ‘seriously injured worker’ under the Act. There is also a greater likelihood that, by combining impairments, a worker could receive significant lump sum compensation.
The Compensating Authority recently made an Application for special leave to the High Court of Australia to appeal the Court’s decision. However, the High Court refused the Application, which means that Return to Work SA are required to apply the Supreme Court’s ruling.
Consequently, and without legislative change, the Scheme will likely experience a significant increase in the costs of administering claims by virtue of the number of workers who meet the ‘seriously injured worker’ threshold and increased numbers of workers entitled to lump sum compensation. The implications of this decision are far-reaching, such that businesses that employ workers in South Australia will invariably be subject to significantly higher premiums to fund the additional cost to the Scheme.