1. Lessons for Both Sides of the Fence – A Review of Recent Cases
Ian Colgrave Barrister Howard Zelling Chambers
7 October 2016

2. Six groups of cases:
Cases relating to procedure.
Cases involving combination of WPI assessments.
Cases revolving around acquired rights for workers with existing injuries and limitations upon those workers’ rights.
Cases concerning costs.
Hearing loss cases.
Cases which will emerge.

3. Procedure Cases WCH Network v Masehela [2016] SAET 42 regarding independent medical examinations of workers. Hoffmann v Return to Work SA (BOC Australia Pty Ltd) [2016] SAET 30 regarding whether a reviewable decision has been made. Botsos v Return to Work Corporation of South Australia (Marshall & Brougham Constructions Pty Ltd) [2016] SAET 22 outlining importance of compliance with orders pursuant to the new provisions.

4. Dallimore v Return to Work SA (Slape Crash Repairs) [2016] SAET 47
“Combination” Cases
K v WorkCover Corporation (Mondello Farms Pty Ltd) [2016] SAET 5
Preedy v Return to Work SA [2016] SAET 36
Pollidorou v Return to Work SA [2016] SAET 37
Martin v Return to Work SA (Stratco Pty Ltd) [2016] SAET 39
Dallimore v Return to Work SA (Slape Crash Repairs) [2016] SAET 47
All involve discussion and application of Full Supreme Court decision in Marrone v Employers Mutual Limited as an Agent for WorkCover [2013] SASCFC 67

5. Cases Involving Alleged Acquired Rights or Limitation Upon Rights of Workers with Existing Injuries
Harden v Return to Work SA [2015] SAET 3 involving a worker’s right to continue to receive weekly payments following a discontinuance determination.
Schouwenaar v Woolworths (SA) Pty Ltd [2015] SAET 5 involving a discontinuance pursuant to section 35B and section 36(1)(i) of the repealed Act and an application for continuing weekly payments pursuant to section 35C of the repealed Act.

6. Section 16 of the Acts Interpretation Act 1915 “(1) Where an Act is repealed or amended, or where an Act or enactment expires, then, unless the contrary intention appears, the repeal, amendment or expiry does not – … (b) affect the operation of the repealed, amended or expired Act or enactment, or alter the effect of the doing, suffering or omission of anything, prior to the repeal, amendment or expiry; or (c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable, or any status or capacity existing, prior to the repeal, amendment or expiry …”

7. Pennington v Return to Work SA [2016] SAET 21 – regarding workers not in receipt of weekly payments as at 1 July 2015 due to discontinuance under section 36 of the Act not being entitled to receive weekly payments after that date.

8. Watkins v Return to Work SA (Allied Mills Pty Ltd) [2016] SAET 38 – regarding any entitlement to weekly payments in respect of incapacity for work resulting from surgery performed after the commencement of the RTW Act in relation to an existing injury under the repealed Act.

9. Denton v Return to Work SA (Narooma Nursing Home) [2016] SAET 57 – regarding a claim for further lump sum impairment assessment pursuant to section 43 of the repealed Act for the results of surgery subsequent to an earlier section 43 assessment.

10. Costs Cases Kviesitis v Return to Work SA [2016] SAET 50 – whether a worker acted unreasonably in continuing to pursue a claim when there was correspondence from the compensating authority asserting that the alleged causal connection was tenuous – answer “no”. O’Dwyer v WorkCover Corporation/EML [2016] SAET 51 – worker acted unreasonably by pursuing action based on an account which she knew to be untrue.

11. Costs on Appeal Scheme under the repealed Act different to scheme under the new Act. Section 95 of the repealed Act: “(1) A party (other than the relevant compensating authority) is entitled… to an award against the relevant compensating authority for the party’s reasonable costs of – … (b) Any… proceedings for resolution of the dispute… (but not proceedings by way of an appeal or a reference of a question of law to a Full Bench of the Tribunal or the Supreme Court).”

12. Section 106(1):
“A party (other than the relevant compensating authority) is entitled… to an award against the relevant compensating authority for the party’s reasonable costs of – …
(b) Any subsequent proceedings for resolution of the matter before the Tribunal.”

13. Hearing Loss Cases
Wade v SA Water [2016] SAET 23 – Application for permission to appeal to the Supreme Court pending.
Mitchell v Return to Work Corporation of South Australia [2016] SAET 41 – Appeal to Full Bench of the Tribunal pending.
Renfrey v Return to Work SA (TNT Express) [2016] SAET 55 – Appeal pending.
Strachan v Return to Work SA (Hi-Fert Pty Ltd) [2016] SAET 27.

14. From Strachan Argument that the “proper determination” of the claim has been substantially prejudiced due to failure to give notice or to make a claim within the prescribed time.

15. Cases to Emerge
Applications for future medical treatment under section 33(17), (18) and (21).
Cases involving the new “test” for compensability of psychiatric injuries.
Cases involving determination that a worker is a seriously injured worker pursuant to section 21 of the Act.