RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v SOPHIA PAPADOPOULOS [2025] SASCA 48

On Appeal from SOUTH AUSTRALIAN EMPLOYMENT TRIBUNAL (HIS HONOUR DEPUTY PRESIDENT JUDGE ROSSI, HIS HONOUR DEPUTY PRESIDENT JUDGE CRAWLEY AND HIS HONOUR DEPUTY PRESIDENT COLE) ET-21-05119 Applicant: RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA Counsel: MR B ROBERTS KC WITH MS D DE PALMA - Solicitor: SPARKE HELMORE LAWYERS Respondent: SOPHIA PAPADOPOULOS Counsel: MR J WARREN KC WITH MS E THEODORE - Solicitor: PALIOS MEEGAN & NICHOLSON Hearing Date/s: 02/12/2022 File No/s: CIV-22-9834 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v PAPADOPOULOS [2025] SASCA 48 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby) 8 May 2025 WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES Appeal from orders of the Full Bench of the South Australian Employment Court (the Full Bench). The worker suffered various injuries in the course of her employment. Since then, the worker has received compensation for a number of injuries, including in 2014 for her left hip impairment pursuant to s 43 of the Workers Rehabilitation and Compensation Act 1986 (SA). In May 2017, a determination was made rejecting the worker’s claim for compensation for non- economic loss by way of a lump sum for left hip impairment following a left total hip replacement undertaken in May 2015. In February 2020, the determination to reject the worker’s further claim for non-economic loss following the left hip replacement was confirmed by consent orders made by the South Australian Employment Tribunal. In March 2020, the worker made a new claim for non-economic loss for the left hip replacement undertaken in 2015, describing it as a “surgical injury”. The Full Bench dismissed an appeal from the decision of the primary judge who found that the worker was entitled to an assessment of her whole person impairment pursuant to s 22 of the Return to Work Act 2014 (SA) for the “surgical injury” following the left hip replacement. The appellant appealed on various grounds, including that the Full Bench erred in finding that the “surgical injury” constituted an injury within the meaning of s 4 of the Return to Work Act 2014 (SA) -- 1 of 65 -- that gave rise to an entitlement to an assessment of permanent impairment, and that the Full Bench erred in failing to find that the “one claim, one assessment” principle precluded the further claim. The Court held, granting leave to appeal and allowing the appeal: 1. Any further claim of the kind made in 2020 was foreclosed by Khan v Return to Work Corporation of South Australia [2019] SASCFC 150 and the “one claim, one assessment principle”, following the resolution in 2014 of the claim made by the worker for compensation for non-economic loss by way of a lump sum for left hip impairment. [215]-[217] 2. There was no scope to make a claim for a “surgical injury” in the circumstances of this case as the effect of the surgery was ameliorative, and the worker’s pain and function were considerably improved. The identification of a separate “surgical injury” constituted an error of law. The Full Bench should have followed Cepon v Return to Work Corporation of South Australia [2022] SAET 32. [204]-[205], [219] 3. Whilst it is not strictly necessary to decide the appeal ground concerning cause of action estoppel, the worker’s entitlement to make a claim for non-economic loss for her left hip injury was resolved in 2014, and the worker had no further entitlement to lump sum compensation for non-economic loss for left hip impairment. The worker’s right to make a claim for left hip impairment merged in determinations and the orders made by the Tribunal in 2020. [226]-[229], [241] 4. Observations made about the need to keep distinct the nature of the claim made by a worker for an injury or impairment, and the ways in which that might be assessed by a medical assessor. [74], [80], [179]-[183] 5. Observations made about a suggested new claim for left hip arthritis which was not formally or properly made at trial or before the Full Bench, and which was not supported by a cross appeal or notice of contention. [240], [210]-[214] Return to Work Act 2014 (SA) ss 4, 7, 22, 40, 56, 58, sch 9 cll 29, 43, 44; Workers Rehabilitation and Compensation Act 1986 (SA) ss 30, 43, 43A; Return to Work (Scheme Sustainability) Amendment Act 2022 (SA) s 6; Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2005 (SA); Return to Work (Transitional Arrangements) (General) Regulations 2015 reg 5, referred to. Cepon v Return to Work Corporation of South Australia [2020] SAET 195; Cepon v Return to Work Corporation of South Australia [2022] SAET 32; Khan v Return to Work Corporation of South Australia [2019] SAET 11 ; Khan v Return to Work Corporation of South Australia [2019] SASCFC 150; Neilson v Department for Health and Ageing [2016] SAET 77; Return to Work Corporation of South Australia v Mitchell (2019) 135 SASR 315; Salmon St Ltd v Jorgensen (1991) 56 SASR 158, discussed. Alcoa Holdings Ltd v Lowthian [2011] VSC 245; Australian Eagle Insurance Co Ltd v Federation Insurance Ltd (1970) 15 SASR 282; Baldacchino v Monier Roofing [1995] SAWCAT 114 ; Canute v Comcare (2006) 226 CLR 535; Clayton v Bant (2020) 272 CLR 1; Cooper v Return to Work [2020] SASC 140; Cristea v The Workers Rehabilitation and Compensation Corporation (CCA Snack Foods Employer) (1993) 61 SASR 487; Department for Child Protection (SA) v Morris [2022] SASCA 131; Department of Health and Ageing v Neilson [2017] SAET 136; Hatzimanolis v ANI Corporation (1992) 173 CLR 473; Lingenberg v Gallichio (2013) 40 VR 60; Martin v Return to Work SA (Stratco Pty Ltd) [2016] SAET 39; McCutcheon v Grimmond (No 1) (1986) 40 SASR 404; Marrone v Employers Mutual Limited as An Agent for WorkCover Corporation of South Australia (2013) 116 SASR 501; Mills v Return to Work Corporation [2019] SASC 56; Mitsubishi v Kowalski [2019] SASCFC 95; Nemesis v Meatpak Australia Pty Ltd [2020] SASCFC 22; Packer v Cameron (1989) 54 SASR 246; Papadopoulos v Return to Work Corporation of South Australia [2021] SAET 157; Park v Peach [1967] VR 558; Paschalis v Return to Work Corporation of South Australia (2021) 140 SASR 77; Paterson v Return to Work Corporation of South Australia [2021] SAET 23; Peet v Workers Rehabilitation and Compensation Corporation (1996) 66 SASR 474; Pond v WorkCover/Allianz Australia (Wunda Joinery) [2001] SAWCT 69; Redman v Return to Work Corporation of South Australia (2021) 139 SASR 131; Return to Work Corporation of South Australia v Papadopoulos [2022] SAET 104; Return to Work Corporation of South Australia v Preedy (2018) 131 SASR 86; Return to Work Corporation of South Australia v Watkins [2017] -- 2 of 65 -- SASCFC 149; Return to Work Corporation of South Australia v Summerfield (2021) 138 SASR 175; Return to Work Corporation of South Australia v Watkins [2017] SASCFC 149; Return to Work Corporation (SA) v English; Williams v Return to Work Corporation (SA) [2023] SASCA 125; Return to Work SA v Anderson [2018] SAET 70; South Australia (in Right of the Department for Health and Ageing (SA) Ambulance Service) v Dohnt (2021) 138 SASR 270; Stephenson v Return to Work Corporation of South Australia (2019) 134 SASR 141; Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; Transadelaide v Karanicos [1996] SASC 5536 ; Wardleworth v Green (1996) 66 SASR 421; WorkCover Corporation (Century Products (SA) Pty Ltd v Hojski (1993) 170 LSJS 129; WorkCover Corporation of SA v Marina (1996) 66 SASR 241; Workers Rehabilitation and Compensation Corporation v Hillier & Van Wyk (1997) 193 LSJS 57; Wright v New South Wales [2024] NSWCA 77, considered. -- 3 of 65 -- -- 4 of 65 -- RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v PAPADOPOULOS [2025] SASCA 48 Court of Appeal – Civil: Livesey P, Doyle and Bleby JJA THE COURT: Introduction 1 This is an appeal by the Return to Work Corporation of South Australia (the Corporation) against orders of the Full Bench of the South Australian Employment Court,1 dismissing an appeal from the decision of the primary judge which permitted a worker to make two non-economic loss claims for her left hip injury, one before and one after left hip replacement surgery.2 2 That is, the primary judge found that the respondent (the worker) was entitled to an assessment of her whole person impairment (WPI) pursuant to Part 2, Division 5 (s 22) of the Return to Work Act 2014 (SA) (the 2014 Act) for what was termed a “surgical injury” following a left hip replacement undertaken on 26 May 2015.3 The complicating features in this matter are: (i) following a 2014 determination, the worker received lump sum compensation for her left hip injury pursuant to s 43 of the Workers Rehabilitation and Compensation Act 1986 (SA) (repealed) (the 1986 Act); and (ii) following a 2017 determination to reject the worker’s further claim for non-economic loss following her left hip replacement, that determination was confirmed by consent orders made on 12 February, and again on 19 February 2020, in the South Australian Employment Tribunal (the Tribunal).4 3 There is no suggestion that the left hip replacement surgery was other than ameliorative of the worker’s painful and restrictive left hip condition, which had developed over time as a result of her work-related back injury. This case may accordingly be distinguished from those where the surgical treatment of a work 1 Return to Work Corporation of South Australia v Papadopoulos [2022] SAET 104 (Rossi, Crawley DPJJ and Cole DP) (the Full Bench). 2 Papadopoulos v Return to Work Corporation of South Australia [2021] SAET 157 (Gilchrist DPJ) (the primary judge). 3 Primary judge, [1] and [111]. 4 On 12 February 2020, Judge Gilchrist entered consent orders which included that the decision dated 17 May 2017 is “confirmed in so far as it provides the worker has no further entitlement to lump sum compensation for left hip impairment”, and an order for costs was made, AB 167-168. On 19 February 2020, Judge Gilchrist made another consent order setting aside the 12 February order, but again confirming the determinations dated 17 May 2017 and again ordering that the worker’s costs be paid, AB 316. These orders are set out below. -- 5 of 65 -- [2025] SASCA 48 The Court 2 injury has not been performed competently, or where the worker has been troubled by other complications as a result of the surgical treatment of a work injury.5 4 For the following reasons, leave to appeal should be granted and the appeal allowed. 5 In the circumstances of this case, the Full Bench and the primary judge erred in law in recognising a “surgical injury” and in failing to give effect to the “one claim, one assessment” principle recognised by s 43A(8)(b) of the 1986 Act. The orders of the Full Bench and the primary judge should be set aside. 6 These reasons are set out as follows: The Corporation’s grounds of appeal............................................................................................. 3 Relevant statutory provisions and other materials ......................................................................... 4 Relevant background.................................................................................................................... 18 Employment – a back injury then a left hip injury ................................................................... 18 The claim concerning left hip injury ........................................................................................ 19 The 2014 Determination .......................................................................................................... 24 The second claim concerning left hip injury ............................................................................ 25 The 2017 Determination .......................................................................................................... 26 The consent orders made in February 2020 ............................................................................ 27 The new claim made in March 2020 ........................................................................................ 28 The cross-examination of Dr Sood........................................................................................... 29 The reasons of the primary judge................................................................................................. 30 The reasons of the Full Bench...................................................................................................... 34 The determination of the appeal................................................................................................... 35 Appeal grounds 2 and 4: The one claim, one assessment principle ........................................ 36 The contentions of the parties .................................................................................................. 36 Determining appeal grounds 2 and 4 ...................................................................................... 38 Conclusions on appeal grounds 2 and 4 .................................................................................. 56 Appeal ground 1: ameliorative surgery does not produce an injury ....................................... 57 Appeal ground 3: the 2020 orders precluded any further left hip claim ................................. 57 Conclusion ................................................................................................................................... 61 5 See, for example, Workers Rehabilitation and Compensation Corporation v Hillier & Van Wyk (1997) 193 LSJS 57, 62, ; [1997] SASC 6274, where Doyle CJ (with whom Matheson J agreed) recognised that in that kind of case, the “operation was itself a compensable disability in respect of which the worker could have made a successful claim for compensation: see Australian Eagle Insurance Company Ltd v Federation Insurance Ltd (1976) 15 SASR 282 and Wardleworth v Green (1996) 66 SASR 421”. -- 6 of 65 -- [2025] SASCA 48 The Court 3 The Corporation’s grounds of appeal 7 The Corporation’s grounds of appeal are as follows: 1. The Full Bench erred at [77] and [81] in finding that total hip replacement surgery which has been ameliorative of a compensable injury constitutes an “injury” within the meaning of s 4 of the [2014 Act] and gives rise to an entitlement to an assessment of permanent impairment pursuant to s 22 of to the [2014 Act]. 2. The Full Bench erred in failing to find that the one assessment principle precluded a further claim for the arthritic condition that was additional to the claim for trochanteric bursitis and in thereby distinguishing (at [96], [98]) the decision in Khan v Return to Work [2019] SASCFC 150. 3. The Full Bench erred at [88] in failing to find that the consent orders of the Tribunal dated 19 February 2020 (which set aside the orders of 12 February 2020 referred to at [88] and otherwise confirmed the determination) gave rise to a cause of action estoppel, or alternatively an issue estoppel, in circumstances where the determination that was affirmed was the rejection of a claim for permanent impairment for “left hip impairment due to a total left hip replacement”. 4. The Full Bench erred (at [95]) in rejecting the contention that clause 44 of Schedule 9 to the [2014 Act] precluded the worker’s claim in: (i) mischaracterising the injury as the surgery to treat the left hip joint, when the relevant injury was the arthritic condition of the hip joint; (ii) thereby failing to find that the injury to the hip joint was an injury arising from the same trauma as that causing the trochanteric bursitis. 8 The question of leave to appeal was referred to this Court for argument as on appeal. The worker opposed a grant of leave to appeal, reiterating submissions similar to those which had been made to the Full Bench. These were that there had been a failure by the primary judge to make certain “necessary” findings and his reasons were inadequate. The Full Bench dismissed the appeal and did not find it necessary to order remittal:6 Ms Papadopoulos, represented upon appeal by different senior counsel to the senior counsel who represented her at trial, submitted that the matter should be remitted and cannot be finally decided by this Full Bench because the reasons of the trial judge did not adequately explain the events and sequence of events out of which the arthritic condition affecting the left hip arose and the causal relationship between that condition (including any deterioration or acceleration of that condition) and the employment. It was further contended that the trial judge did not make a finding as to whether the operative treatment to the hip joint was in respect of an injury, the subject of entitlement under s 43 of the [1986 Act] made on 6 March 2014, or if it was an injury that was not the subject of that determination. That was submitted to be important on the basis that the lack of such a finding precluded Ms Papadopoulos from challenging the finding of the trial judge that the injury from surgery did not arise out of or in the course of her employment under s 30(2)(a) of the [1986 Act]. 6 Full Bench, [45]-[47]. -- 7 of 65 -- [2025] SASCA 48 The Court 4 Ms Papadopoulos also submitted that the nature of the injury attributable to the operative procedure was not adequately addressed and that the reasons of the trial judge are inadequate as to why the terms of the consent order made on 19 February 2020 ought not be considered. 9 On one view of it, these submissions adroitly sought to address a matter elided by the Full Bench. That is, the difficulties associated with treating the worker’s arthritic condition as the basis for claiming a so-called “surgical injury”, without having the benefit of the findings necessary to support a left hip arthritis injury claim. 10 The worker contended before this Court that the absence of findings such as these and the inadequacy of the reasons of the primary judge did not enable the issue as to whether there is a cause of action estoppel or bar to be finally determined, with the result that there was “no utility” in this appeal. 11 In developing her contention that there was no utility in this appeal, the worker also contended that s 7(6) of the 2014 Act did not apply; that the “one assessment principle” enshrined in s 22(10) of the 2014 Act had been deleted and substituted by s 6(5) of the Return to Work (Scheme Sustainability) Amendment Act 2022 (SA); and, in any event, that provision had no application because there had never been any assessment of permanent impairment made under s 22 of the 2014 Act.7 12 As will be seen, although on one view there may be issues concerning the adequacy of the findings and reasons of the primary judge, this is an appropriate case in which to grant leave to appeal.8 The matters raised by the worker are in part answered by the absence of any claim formally or properly made for a left hip arthritis injury, whether at trial or before the Full Bench. 13 It is helpful to commence with the relevant statutory provisions and materials, before considering the worker’s injuries and claims, and then the decisions under appeal. Relevant statutory provisions and other materials 14 Speaking generally, and subject to the transitional provisions in Part 10 of Schedule 9 to the 2014 Act, compensation for injuries occurring before 1 July 2015 was addressed under the 1986 Act. 15 Sections 43 and 43A were introduced by the Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2005 (SA), assented to on 19 June 2008. A worker’s entitlement to compensation for non-economic loss by way of a lump sum was established by s 43 of the 1986 Act: 7 Written submissions of the respondent worker, 25 November 2022, [17]. 8 Mills v Return to Work Corporation [2019] SASC 56, [21]-[22] (Hinton J); cf Cooper v Return to Work [2020] SASC 140, [22]-[23] (Kelly J, as her Honour then was). -- 8 of 65 -- [2025] SASCA 48 The Court 5 43—Lump sum compensation (1) Subject to this Act, if a worker suffers a compensable injury resulting in permanent impairment as assessed in accordance with section 43A, the worker is entitled (in addition to any entitlement apart from this section) to compensation for non-economic loss by way of a lump sum. (2) Subject to this section, the lump sum will be an amount that represents a portion of the prescribed sum calculated in accordance with the regulations. (3) Regulations made for the purposes of subsection (2) must provide for compensation that at least satisfies the requirements of Schedule 3 taking into account the assessment of whole of person impairment under this Division. (4) An entitlement does not arise under this section if the worker's degree of permanent impairment is less than 5%. (5) An entitlement does not arise under this section in relation to a psychiatric impairment. (6) If a worker suffers 2 or more compensable injuries arising from the same trauma— (a) the injuries may together be treated as 1 injury to the extent set out in the WorkCover Guidelines (and assessed together using any combination or other principle set out in the WorkCover Guidelines); and (b) the worker is not entitled to receive compensation by way of lump sum under subsection (2) in respect of those injuries in excess of the prescribed sum. (7) If— (a) a compensable injury consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior compensable injury; and (b) compensation by way of lump sum has been previously paid under this section, or a corresponding previous enactment, there will be a reduction of the lump sum payable under this section in respect of the injury by the amount of the previous payment unless such a reduction is incorporated into the provisions of the WorkCover Guidelines. (8) For the purposes of this section, the prescribed sum is— (a) unless a regulation has been made under paragraph (b)—$400 000 (indexed); or (b) a greater amount prescribed by regulation for the purposes of this definition. (9) In connection with the operation of subsection (8)— (a) the amount to be applied with respect to a particular injury is the amount applying under that subsection at the time of the occurrence of that injury; and (b) an amount prescribed by regulation under paragraph (b) of that subsection must be indexed so as to provide annual adjustments according to changes in the Consumer Price Index. -- 9 of 65 -- [2025] SASCA 48 The Court 6 (10) For the purposes of this section, any degree of impairment will be assessed in accordance with section 43A (and the WorkCover Guidelines). (11) Compensation is not payable under this section after the death of the worker concerned. (12) In this section— WorkCover Guidelines means the guidelines published under section 43A. 16 The statutory cause of action for which a claim could be made under s 43 of the 1986 Act required: (1) proof that a worker suffered a compensable injury; (2) which injury resulted in permanent impairment; (3) which impairment was assessed in accordance with s 43A and the WorkCover Guidelines (the Guidelines). 17 As will be seen, the law has for some time permitted only one claim to be made following one assessment of whole person impairment concerning each compensable injury. The relevant principle has been described in various ways, and for present purposes it is convenient to describe it as “the one claim, one assessment principle”.9 18 Given the many ways in which workers may be injured in the course of employment, and the many ways in which work injuries may become worse over time, the 1986 Act recognised that the one claim, one assessment principle was on occasion necessarily subject to modification. For example, where a worker suffered two or more compensable injuries arising from “the same trauma”, s 43(6) permitted the injuries to be “treated as 1 injury to the extent set out in the … Guidelines”. By s 3, the definition of “trauma” meant: “an event, or series of events, out of which a compensable injury arises”. 19 The meaning of the phrase “arising from the same trauma” in s 43(6) was addressed by the Full Court in Marrone v Employers Mutual Limited,10 and the view that the injuries must arise from the same event or the same series of events, was followed in Return to Work Corporation of South Australia v Mitchell.11 9 See, for example, Baldacchino v Monier Roofing [1995] SAWCAT 114 (Gilchrist DP); Khan v Return to Work Corporation of South Australia [2019] SAET 11 (Hannon and Calligeros DPJJ, Lieschke DP dissenting); Khan v Return to Work Corporation of South Australia [2019] SASCFC 150 (Kourakis CJ, with whom Peek and Doyle JJ agreed) (Khan), discussed below. 10 Marrone v Employers Mutual Limited as An Agent for WorkCover Corporation of South Australia (2013) 116 SASR 501 (Kourakis CJ, Sulan and White JJ) (Marrone), where at [88]-[90] the Full Court departed from the approach which had earlier been taken to similar words in s 54 of the 1986 Act and, at [86] (White J, with whom Sulan J agreed) held it was “confined to circumstances in which one and the same event, or series of events, causes multiple compensable disabilities”. 11 Return to Work Corporation of South Australia v Mitchell (2019) 135 SASR 315 (Stanley J, with whom Kourakis CJ and Hinton J agreed) (Mitchell). -- 10 of 65 -- [2025] SASCA 48 The Court 7 20 Given the restrictions imposed on the recoverability of compensation for weekly payments and medical expenses introduced by the 2014 Act,12 and the corresponding importance to a worker of “serious injury” designation,13 there was considerable litigation concerning the ways in which the 1986 Act,14 and the 2014 Act,15 permitted the “combination” of injuries. Recently, the issue has been addressed by legislation.16 21 In the case of subsequent injuries involving, say, the “deterioration or recurrence of a prior compensable injury”, s 43(7) recognised the scope for a further claim but required that there be a reduction to avoid double-compensation, whether in the amount of the previous compensation payment or as incorporated in the Guidelines. Moreover, a “secondary injury” was defined by s 3 to mean an injury that is or results from “the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury”. 22 By s 43(1), the assessment of permanent impairment had to be conducted in accordance with s 43A of the 1986 Act, which provides:17 43A—Assessment of impairment (1) This section sets out a scheme for assessing the degree of impairment that applies to a compensable injury that results in permanent impairment. (2) An assessment— (a) must be made in accordance with the WorkCover Guidelines; and (b) must be made by a legally qualified medical practitioner who holds a current accreditation issued by the Corporation for the purposes of this section. (3) The Minister will publish guidelines (the "WorkCover Guidelines") for the purposes of section 43 and this section. (4) The guidelines under subsection (3)— 12 Return to Work Corporation of South Australia v Watkins [2017] SASCFC 149, [2]-[3] (Kourakis CJ, with whom Nicholson J agreed); Redman v Return to Work Corporation of South Australia (2021) 139 SASR 131, [82]-[88] (Livesey JA, with whom Bleby JA agreed). 13 Return to Work Corporation of South Australia v Preedy (2018) 131 SASR 86, [39] (Stanley J, with whom Kourakis CJ and Parker J agreed) (Preedy); South Australia (in Right of the Department for Health and Ageing (SA) Ambulance Service) v Dohnt (2021) 138 SASR 270, [92]-[100] (Livesey J, with whom Kourakis CJ and Parker J agreed). 14 See, for example, under the 1986 Act, Marrone (2013) 116 SASR 501 (Kourakis CJ, Sulan and White JJ); Mitchell (2019) 135 SASR 315, [24]-[30] and [58] (Stanley J, with whom Kourakis CJ and Hinton J agreed). 15 See, for example, under the 2014 Act, Return to Work Corporation of South Australia v Summerfield (2021) 138 SASR 175, [14] and [22]-[25] (Stanley J, with whom Kourakis CJ and Doyle J agreed) (Summerfield); Return to Work Corporation (SA) v English; Williams v Return to Work Corporation (SA) [2023] SASCA 125 (Doyle and Bleby JJA, Kourakis CJ in dissent) (English). 16 See now, the Return to Work (Scheme Sustainability) Amendment Act 2022 (SA). 17 In Mitchell (2019) 135 SASR 315, [39] (Stanley J, with whom Kourakis CJ and Hinton J agreed), s 43A was described as “subordinate to s 43 in the hierarchy of provisions” of the 1986 Act. -- 11 of 65 -- [2025] SASCA 48 The Court 8 (a) must be published in the Gazette; and (b) may adopt or incorporate the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time; and (c) must incorporate a methodology that arrives at an assessment of the degree of impairment of the whole person; and (d) may specify procedures to be followed in connection with an assessment for the purposes of this Division; and (e) may have effect on a day specified by the Minister by notice in the Gazette; and (f) may be amended or substituted by the Minister from time to time. (5) The Minister must, before publishing or amending the WorkCover Guidelines, consult with— (a) the Australian Medical Association (South Australia) Incorporated; and (b) any other prescribed body. (6) The Corporation will establish an accreditation scheme for the purposes of subsection (2)(b). (7) The accreditation scheme— (a) may provide for a term or period of accreditation, and for the suspension or cancellation of accreditation on specified grounds; and (b) may specify terms or conditions of accreditation; and (c) may be amended or substituted by the Corporation from time to time. (8) An assessment of the degree of impairment resulting from an injury for the purposes of this Division must— (a) be made after the injury has stabilised; and (b) subject to subsection (9), be based on the worker's current impairment as at the date of assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury. (9) An assessment must take into account the following principles: (a) if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed chronologically by date of injury; (b) impairments from unrelated injuries or causes are to be disregarded in making an assessment; -- 12 of 65 -- [2025] SASCA 48 The Court 9 (c) assessments are to comply with any other requirements specified by the WorkCover Guidelines or prescribed by the regulations. (10) An amendment or substitution in relation to the WorkCover Guidelines under subsection (4)(d) will only apply in respect of an injury occurring on or after the date the amendment or substitution takes effect. (11) A number determined under the WorkCover Guidelines with respect to a value of a person's degree of impairment may be rounded up or down according to any principle set out in the WorkCover Guidelines. 23 Relevantly, and consistently with the one claim, one assessment principle, any assessment of the degree of impairment resulting from a compensable injury had to be made after the injury had stabilised (s 43A(8)(a)) and “be based on the worker’s current impairment as at the date of assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker” in respect of the compensable injury (s 43A(8)(b)). 24 The assessment of whole person impairment had to be made in accordance with the Guidelines (ss 43(1) and 43A(2)(a)). By Chapter 1.5 of the Guidelines: Evaluating permanent impairment involves clinical assessment on the day of assessment, determining: • whether the worker’s compensable disability has resulted in impairment • whether the compensable disability has reached Maximum Medical Improvement (MMI) • whether the resultant impairment is permanent • the degree of permanent impairment that results from the compensable disability and • the proportion of permanent impairment due to any previous disability (compensable or otherwise). This is in accordance with diagnostic and other objective criteria as detailed in the WorkCover Guidelines. 25 By Chapter 1.16 of the Guidelines, it is explained that “[m]ost body systems, structures and disorders included in AMA5 are included in the WorkCover Guidelines”. By Chapter 3 of the Guidelines, lower extremity impairments are assessed, subject to any modifications, in accordance with Chapter 17 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th edition (AMA5). 26 Table 17.1 of AMA5 divides the methods for the assessment of lower extremity impairment into three categories, but these methods are not all mutually exclusive. These are: the anatomic, functional and diagnosis-based methods. It is a matter for the medical examiner as to which method is selected. As will be seen, -- 13 of 65 -- [2025] SASCA 48 The Court 10 different examiners may choose different methods of assessment concerning the same work injury. 27 From midnight on 30 June 2015, the 1986 Act was repealed and replaced by the 2014 Act. When determining the potential application of the 2014 Act to injuries first occurring during the operation of the 1986 Act, it is necessary to commence with the transitional provisions in the 2014 Act. These transitional provisions are in Part 10 of Schedule 9 to the 2014 Act, and cl 29 provides: (1) Subject to the other provisions of this Part, this Act applies to and in relation to— (a) an injury that is attributable to a trauma that occurred before the designated day and that is a compensable injury under the repealed Act (an existing injury); and (b) an injury that is attributable to a trauma that occurred on or after the designated day (a new injury). (2) For the purposes of subclause (1), an injury that is partially attributable to a trauma that occurred before the designated day and partially attributable to a trauma that occurred on or after the designated day will be taken to be a new injury within the ambit of subclause (1)(b). (3) Subject to the other provisions of this Part— (a) a reference in this Act to a work injury will be taken to include a reference to a compensable injury under the repealed Act; and (b) this Act will apply to a compensable injury under the repealed Act as if this Act had been in operation before the injury occurred. (4) Nothing in this Part is intended to give rise to an entitlement under this Act and the repealed Act so as to give rise to double entitlements. 28 An injury attributable to a trauma before 1 July 2015 – the designated day – that is compensable under the 1986 Act is an “existing injury”. An injury attributable to a trauma on or after the designated day, or an injury which is partially attributable to a trauma before, and partially attributable to a trauma on or after, the designated day are both a “new injury”. 29 Under the 2014 Act, the term “trauma” is again defined to mean “an event, or series of events, out of which a work injury arises” by s 4. 30 Where an entitlement to non-economic loss has already been determined under the 1986 Act, cl 44 of Schedule 9 provides that there is no entitlement to an assessment under the 2014 Act for “the same injury (or any other injury arising from the same trauma)”: A person whose entitlement for non-economic loss has been determined under Part 4 Division 5 of the repealed Act in respect of an existing injury is not entitled to an assessment under Part 2 Division 5 of this Act in relation to the same injury (or any other injury arising from the same trauma). -- 14 of 65 -- [2025] SASCA 48 The Court 11 31 Recognising that there may be a need to address compensation for existing injuries “affecting more than one part of the body” if an earlier payment of compensation did not cover all aspects of a worker’s non-economic loss, reg 5 of the Return to Work (Transitional Arrangements) (General) Regulations 2015 (the Transitional Regulations) was promulgated. Sub-regulations 5(3), (4) and (5) provide: (3) Subregulation (4) applies (subject to subregulation (5)) in relation to a worker in respect of an existing injury that has given rise to an entitlement to compensation for non-economic loss under section 43 of the repealed Act if— (a) the existing injury has affected more than 1 part of the body; and (b) there has been, before 1 July 2015, a determination under Part 4 Division 5 of the repealed Act, or an order of the Workers Compensation Tribunal, that has given rise to an entitlement to the payment of compensation under that Division but the determination or order (or a combination of both) has not covered all aspects of the non-economic loss suffered by the worker. (4) A worker to whom this subregulation applies may receive compensation for the non-economic loss to the extent that it has not been covered by a determination or order referred to in subregulation (3) if— (a) an application under this subregulation is made to the relevant compensating authority before 1 July 2016; and (b) the injury to which the application relates has stabilised (whether before or after that date); and (c) the relevant compensating authority is satisfied that the compensation for non-economic loss with respect to the injury to which the application relates is payable in accordance with the provisions of Part 4 Division 5 of the repealed Act (and the 2010 regulations in the manner contemplated by subregulation (2)). (5) Subregulation (4) does not apply in relation to— (a) an aggravation, acceleration, exacerbation, deterioration or recurrence of an existing injury that occurs on or after 1 July 2015; or (b) any sequelae that occurs on or after 1 July 2015. 32 It can be seen that the gateways to the operation of these regulations are the existence of (1) an “existing injury” which has (2) “affected more than 1 part of the body”, together with (3) an earlier determination that has “not covered all aspects of the non-economic loss suffered by the worker”. The prohibition on the payment of compensation in sub-reg 5(5) does not apply where the relevant aggravation, acceleration, exacerbation, deterioration or recurrence of an existing injury or any sequelae occurred on or after 1 July 2015 (and, in this case, the surgery occurred on 25 May 2015). -- 15 of 65 -- [2025] SASCA 48 The Court 12 33 By reason of cll 29(1)(a) and (3) of Schedule 9, the 2014 Act applies to an existing injury which is compensable under the 1986 Act. The worker’s case before the primary judge was therefore that, as in Cepon v Return to Work Corporation of South Australia,18 the surgical injury was compensable under the 1986 Act and assessable under s 22 of the 2014 Act.19 34 Where an assessment of permanent impairment is conducted under the 2014 Act, it must be conducted in accordance with s 22,20 which in 2015 provided: 22—Assessment of permanent impairment (1) This section sets out a scheme for assessing the degree of impairment (being whole person impairment) that applies to a work injury that results in permanent impairment. (2) An assessment under this section— (a) must be made in accordance with the Impairment Assessment Guidelines; and (b) must be made by a medical practitioner who holds a current accreditation under this section. (3) The Minister will publish guidelines (the Impairment Assessment Guidelines) for the purposes of the assessment of permanent impairment (being whole person impairment). (4) The guidelines under subsection (3)— (a) must be published in the Gazette; and (b) may adopt or incorporate the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time; and (c) must incorporate a methodology that arrives at an assessment of the degree of impairment of the whole person (whole person impairment); and (d) may specify procedures to be followed in connection with an assessment; and (e) may have effect on a day specified by the Minister by notice in the Gazette; and (f) may be amended or substituted by the Minister from time to time. 18 Cepon v Return to Work Corporation of South Australia [2022] SAET 32, (Calligeros, Kelly DPJJ and Cole DP) (Cepon). 19 Primary judge, [42]. See Part 10 of Schedule 9 to the 2014 Act, cl 29(1)(a). 20 In Preedy (2018) 131 SASR 86, [60] (Stanley J, with whom Kourakis CJ and Parker J agreed), s 22 was described “as being the leading and dominant provision in relation to undertaking assessments of whole person impairment” under the 2014 Act. -- 16 of 65 -- [2025] SASCA 48 The Court 13 (5) The Minister must, before publishing or amending the Impairment Assessment Guidelines, consult with professional associations representing the class or classes of medical practitioners who hold accreditations under this section. (6) An amendment or substitution in relation to the Impairment Assessment Guidelines under subsection (4)(f) will only apply in respect of an injury occurring on or after the date the amendment or substitution takes effect. (7) An assessment of the degree of impairment resulting from an injury— (a) must not be made until there is evidence that the injury has stabilised; and (b) must, subject to subsection (8), be based on the worker's current impairment as at the date of assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury; and (c) must be made by an accredited medical practitioner selected in accordance with the Impairment Assessment Guidelines. (8) An assessment must take into account the following principles: (a) if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed chronologically by date of injury; (b) impairments from unrelated injuries or causes are to be disregarded in making an assessment; (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); (d) impairment resulting from physical injury is to be assessed separately from impairment resulting from psychiatric injury; (e) in assessing impairment resulting from physical injury or psychiatric injury, no regard is to be had to impairment that results from consequential mental harm; (f) in assessing the degree of permanent impairment resulting from physical injury, no regard is to be had to impairment that results from a psychiatric injury or consequential mental harm; (g) any portion of an impairment that is due to a previous injury (whether or not a work injury or whether because of a pre existing condition) that caused the worker to suffer an impairment before the relevant work injury is to be deducted for the purposes of an assessment, subject to any provision to the contrary made by the Impairment Assessment Guidelines; (h) assessments are to comply with any other requirements specified by the Impairment Assessment Guidelines. -- 17 of 65 -- [2025] SASCA 48 The Court 14 (9) A number determined under the Impairment Assessment Guidelines with respect to a value of a person's degree of whole person impairment may be rounded up or down according to any principle set out in the Impairment Assessment Guidelines. (10) Subject to subsections (11) to (15) (inclusive), only 1 assessment may be made in respect of the degree of permanent impairment of a worker from 1 or more injuries (including consequential injuries) arising from the same trauma (and any injury that may subsequently develop or manifest itself or develop after the assessment of impairment is made will not be assessed). (11) For the purposes of subsection (10), an assessment (or parts of an assessment) may be undertaken by more than 1 accredited medical practitioners and their assessments combined so as to create 1 assessment under that subsection. (12) Subsection (10) does not affect the requirement under subsection (8)(d) for impairment resulting from physical injury to be assessed separately from impairment resulting from psychiatric injury. (13) Subsection (10) operates subject to any assessment made under Part 8 (and the exercise of any adjudicative function by the Tribunal or a court). (14) An interim decision under section 21 will not be taken to constitute an assessment for the purposes of subsection (10). (15) Subsection (10) does not apply in any circumstances prescribed by the regulations. (16) For the purposes of this section, the Minister must establish an accreditation scheme after consultation with the Advisory Committee. (17) The accreditation scheme— (a) will provide for the accreditation of medical practitioners who are determined, under the scheme, to be suitably qualified to undertake assessments for the purposes of this section; and (b) will work on the basis that the Minister will issue the accreditations; and (c) may provide for the suspension or cancellation of accreditation by the Minister on specified grounds; and (d) may be amended or substituted by the Minister from time to time after consultation with the Advisory Committee. (18) An accreditation will be issued by the Minister— (a) for a period specified by the Minister; and (b) on conditions determined by the Minister. 35 The assessment of impairment under the 2014 Act must be made in accordance with the Impairment Assessment Guidelines (which in a broad way correspond to the Guidelines under the 1986 Act). There are other, obvious -- 18 of 65 -- [2025] SASCA 48 The Court 15 similarities between s 43A of the 1986 Act, and s 22 of the 2014 Act.21 For present purposes, the most important is that there is a close correspondence between s 43A(8) of the 1986 Act and s 22(7) of the 2014 Act. 36 In addition, and consistently with these provisions, s 22(10) permits only one assessment to be made of the degree of permanent impairment of a worker from injuries (including consequential injuries) “arising from the same trauma”; any injury that may develop or manifest itself after the assessment will not be assessed. 37 Having said that, in Preedy, the Full Court departed from the approach taken to combination under Marrone. Notwithstanding the use of the phrase “arising from the same trauma” in ss 22(10), 56(8) and 58(6) (below), the Full Court held that combination could also be undertaken under s 22(8)(c) of the 2014 Act, and the “same injury or cause” did not require that all impairments be from precisely the same cause, in the sense that a common cause may be sufficient to meet the “causal test”.22 38 The 2014 Act requires impairment assessments to be “made by an accredited medical practitioner selected in accordance with the Impairment Assessment Guidelines” (s 22(7)(c)). At the time of the assessments made in 2013 and 2014, there could be more than one assessing medical examiner, and the process under the 2014 Act and Chapter 17 of the Guidelines which required the nomination of a single accredited and approved assessor was not in operation.23 Clearly, this process was designed to overcome the problems associated with multiple experts which have been discussed from time to time.24 39 The entitlement to compensation by way of a lump sum for non-economic loss is established by s 58 of the 2014 Act: 58—Lump sum payments—non-economic loss (1) Subject to this Act, if a worker suffers a work injury resulting in permanent impairment as assessed under Part 2 Division 5, the worker is entitled (in addition to any entitlement apart from this section) to compensation for non-economic loss by way of a lump sum. (2) An entitlement does not arise under this section if the worker's degree of whole person impairment from physical injury is less than 5%. 21 And some differences, see Preedy (2018) 131 SASR 86, [41]-[48] (Stanley J, with whom Kourakis CJ and Parker J agreed). 22 Preedy (2018) 131 SASR 86, [55]-[59] (Stanley J, with whom Kourakis CJ and Parker J agreed). Followed and refined in Summerfield (2021) 138 SASR 175, [19]-[25] (Stanley J, with whom Kourakis CJ and Doyle J agreed); English [2023] SASCA 125, [136]-[141], [237]-[244] (Doyle JA, with whom Bleby JA agreed). 23 As occurred, for example, in Paschalis v Return to Work Corporation of South Australia (2021) 140 SASR 77, [120], [159] “selected as the sole expert” (Livesey and Bleby JJ). 24 McCutcheon v Grimmond (No 1) (1986) 40 SASR 404, 406-408 (Cox J); Packer v Cameron (1989) 54 SASR 246, 253 (Cox J, with whom Duggan and Mullighan JJ agreed). -- 19 of 65 -- [2025] SASCA 48 The Court 16 (3) An entitlement does not arise under this section in relation to a psychiatric injury or consequential mental harm. (4) Subject to this section, the lump sum will be an amount that represents a portion of the prescribed sum calculated in accordance with the regulations. (5) Regulations made for the purposes of subsection (4) must provide for compensation that at least satisfies the requirements of Schedule 8 taking into account the assessment of whole person impairment undertaken for the purposes of this Division. (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); and (b) the worker is not entitled to receive compensation by way of lump sum under subsection (4) in respect of those injuries in excess of the prescribed sum. (7) If— (a) a work injury consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior work injury; and (b) compensation by way of lump sum has been previously paid under this section, or a corresponding previous enactment, there will be a reduction of the lump sum payable under this section in respect of the injury by the amount of the previous payment unless such a reduction is incorporated into the provisions of the Impairment Assessment Guidelines. (8) For the purposes of this section, any degree of impairment will be assessed in accordance with Part 2 Division 5 (and the Impairment Assessment Guidelines). (9) Only 1 claim may be made under this Division in respect of any impairment or impairments that result from 1 or more injuries (including consequential injuries) arising from the same trauma (and any injury that may subsequently manifest itself or develop after the assessment of impairment is made will not be compensable). (10) Subsection (9) does not apply in any circumstances prescribed by the regulations. (11) Compensation is not payable under this section after the death of the worker concerned. 40 Again, there are obvious similarities between this provision and s 43 of the 1986 Act. For present purposes it may be seen that the one claim, one assessment principle, which was implicit in the 1986 Act, was made explicit by s 58(9) of the 2014 Act. Though not relevant to this appeal, there is scope for a claim to be made for lump sum economic loss under s 56 of the 2014 Act. 41 Under s 7(6) of the 2014 Act any injury attributable to surgery performed with due care and skill is taken to constitute part of a worker’s original work injury: -- 20 of 65 -- [2025] SASCA 48 The Court 17 Any injury attributable to surgery or other treatment or service performed with due care and skill by a person professing to have particular skills and undertaken or provided while attending at a place referred to in subsection (5)(e) will be taken to constitute part of the original work injury. 42 The reference to s 7(5)(e) in this provision is a reference to a provision which is in very similar terms to s 30(5)(e) of the 1986 Act, and which extends the concept of employment: (5) For the purposes of this Act, a worker's employment includes— … (e) attendance at a place to receive a medical service, to obtain a medical report or certificate (or to be examined for the purpose), to receive recovery/return to work services or for the purposes of a recovery/return to work plan, or to apply for, or receive, compensation for a work injury. 43 By s 40 of the 2014 Act, there is scope for a worker to obtain supplementary income support where surgery occurs after the end of the second designated period in s 39. That provision recognises that surgery for a work-related injury may be undertaken some considerable time after a work injury is sustained.25 44 The recent legislative changes concerning combination were described by Doyle JA in English as follows:26 Following the High Court’s refusal of the Corporation’s application for special leave to appeal in Summerfield, Parliament made various amendments to the RTW Act through the Return to Work (Scheme Sustainability) Amendment Act 2022 (SA) (the Amendment Act). The Amendment Act added the following legislative note after s 22(8): Note— The Parliament confirms that this subsection is to be interpreted and applied in accordance with the principles enunciated in the reasons of the Full Court of the Supreme Court in Return to Work Corporation of South Australia v Summerfield [2021] SASCFC 17. Each of ss 22(10), 56(5), 56(8), 58(6) and 58(9) were amended to remove references to the combination of injuries arising “from the same trauma” and replace them with provisions permitting or requiring the combination of impairments “from the same injury or cause” in conformity with s 22(8)(c). The Amendment Act also amended the definition of a “seriously injured worker” to increase the qualifying percentage WPI from 30 per cent to 35 per cent. 25 Redman v Return to Work Corporation of South Australia (2021) 139 SASR 131, [82]-[92] (Livesey JA, with whom Bleby JA agreed). 26 English [2023] SASCA 125, [93]-[96] (Doyle JA, with whom Bleby JA agreed). -- 21 of 65 -- [2025] SASCA 48 The Court 18 45 These changes were not retrospective in operation and do not apply to the circumstances of this case. Relevant background Employment – a back injury then a left hip injury 46 The worker was employed by the Greek Orthodox Community of SA Inc as a cleaner. She suffered various injuries in the course of her employment. On 20 May 2007, the worker injured her right shoulder, and she claimed and was paid compensation under the 1986 Act. On 28 February 2008, she injured her right finger and right wrist. 47 In 2010, the worker injured her lower back. The accepted date for that injury was 28 March 2010.27 In her claim form dated 30 March 2010, the worker gave as her date of birth 5 June 1963.28 She was then aged around 46 years and is now aged around 62 years. The worker explained that she strained her right low back when pulling a mop out of a bucket. She had a WorkCover medical certificate covering a partial incapacity for work between 30 March and 6 April 2010.29 48 According to the primary judge, the worker’s back pain resulted in an altered gait and pain in her left hip:30 As a result of her pain experiences in connection with her back injury Ms Papadopoulos walked with an altered gait. Over time she began to experience pain in her left hip. She said that for a while she was able to cope with her back and hip pain but it gradually got worse, especially in her left hip. She recalled a time in around December 2011, when she was mopping at work and she felt pain and numbness down her left side. She also spoke of experiencing pain in her shoulders and that eventually she was unable to continue working. She sought and obtained compensation under the [1986] Act for her left and right shoulders. The accepted date of injury was 18 December 2011. She has not returned to work since. 49 It will be necessary to address the way in which a claim concerning the worker’s left hip injury was added to the claim concerning her lower back injury in the period between 2011 and 2014. As will be seen, that claim was determined and then resolved by the payment of lump sum compensation for non-economic loss under s 43 of the 1986 Act. There were a number of other claims made as well. 50 Relevantly, the worker’s next claim was not made until 6 March 2020.31 It is this claim which is in issue. The relevant claim form appears to have been completed by the worker’s legal representatives and made a claim for non-economic loss following surgery undertaken by Dr Aman Sood on 26 May 2015 by way of a left total hip replacement. Whilst there are limits to the 27 The claim for compensation arising from the low back strain sustained on 28 March 2010 was accepted on 8 and 16 April 2010, AB 139-140, 142-143. 28 AB 1. 29 AB 2. 30 Primary judge, [3], AB 18. See also the worker’s affidavit, [23]-[32], AB 125-126. 31 AB 3-5. -- 22 of 65 -- [2025] SASCA 48 The Court 19 use of claim forms and other means of identifying what is in issue between the parties,32 with consequential uncertainty and some need for flexibility,33 it is necessary to grapple with what the parties regarded as being in issue at key stages concerning the claims made by the worker in this case. 51 At the heart of this appeal is whether it was open to the worker to treat the May 2015 left hip replacement surgery as the basis for a new claim in 2020 concerning what was described as a “surgical injury”. 52 It is of the first importance to recognise that what was not the subject of the worker’s new claim in 2020 were the physiological processes – or injuries – which necessitated left hip replacement surgery, including arthritic changes in the left hip. As will be seen, this appears to have represented a considered forensic decision. The worker’s contentions on this issue are addressed in connection with appeal ground 3. The claim concerning left hip injury 53 After leaving work at the end of 2011, the worker underwent a number of whole person impairment assessments. These resulted in a number of reports which were put before the primary judge, recording the worker’s various histories and assessments. 54 On 19 September 2013, the worker’s solicitors wrote to Dr D’Onise, occupational physician, seeking an assessment of whole person impairment concerning various injuries, including the lumbar spine. There was no request for examination of the left hip. However, during the course of his examination of the worker on 2 December 2013, Dr D’Onise recorded a reduction in left hip movement. 55 Dr D’Onise also recorded that a 23 February 2012 x-ray and ultrasound revealed mild degenerative changes in both hips, and mild thickening of the trochanteric bursa bilaterally, suggesting mild bursitis.34 Dr D’Onise recorded that a 22 July 2013 ultrasound and x-ray revealed early degenerative change in the left hip, but no obvious trochanteric bursitis. 56 In the course of his report dated 2 December 2013, Dr D’Onise determined that there had been maximum medical improvement for each work-related injury, and he considered that there were ratable impairments concerning a number of injuries, including for what he described as the “left hip” injury or impairment.35 32 Cf 1986 Act, s 52. 33 WorkCover Corporation (Century Products (SA) Pty Ltd v Hojski (1993) 170 LSJS 129, 138 (King CJ), “It is not easy to determine what [s 52] envisages as constituting a claim for compensation”; Cristea v The Workers Rehabilitation and Compensation Corporation (CCA Snack Foods Employer) (1993) 61 SASR 487, 489-490 (King CJ, with whom Bollen and Millhouse JJ agreed); WorkCover Corporation of SA v Marina (1996) 66 SASR 241, 245-247 (Doyle CJ, with whom Cox and Matheson JJ agreed). 34 AB 220. 35 AB 222-223. -- 23 of 65 -- [2025] SASCA 48 The Court 20 57 Dr D’Onise assessed the worker’s left hip impairment using Chapter 17 of AMA5 and, based on the history of impairment and the range of motion using Table 17.10,36 he assessed the worker’s whole person impairment of the left hip at 2% – or “Mild”. By testing the worker’s range of motion, all left hip pathology was taken into account.37 58 When combined with the lumbar spine impairment of 7% WPI using the combined values chart in AMA5, Dr D’Onise arrived at a 9% whole person impairment.38 That assessment of each relevant “body part or system” was articulated in Dr D’Onise’s report as follows:39 Body part or system WorkCover Guidelines Chapter, page, table/figure AMA5 Chapter, page, table/figure % WPI Pre- existing % WPI Compensable % WPI 2. Lumbar spine Ch 4 Ch 15 T 15.3 7% - 7% 3. Left hip Ch 3 Ch 17 T 17.9 2% - 2% (add extra rows if necessary) Total (from Combined Values Chart AMA5 9% WPI 59 Two years later, on 16 December 2015 the worker’s solicitors wrote to Dr D’Onise seeking a further report, this time including as a “potential new claim” the impairment of the left hip due to a total hip replacement surgery performed on 26 May 2015.40 60 In the course of his report dated 19 January 2016, Dr D’Onise recorded the worker’s long history of left hip pain, which he had commented on in his 2013 assessment, as well as his review of the medical investigations which had identified some bursitis as well as underlying degenerative changes in the left hip.41 Dr D’Onise recommended reviewing the left hip in six months.42 61 Following a further request from the worker’s solicitors dated 10 March 2016,43 Dr D’Onise provided a report dated 5 September 2016 in which he assessed the left hip as having reached maximum medical improvement.44 The 36 This is likely a slip; Table 17.10 refers to Knee Impairment, whereas Table 19.9 refers to Hip Motion Impairment, AMA5 page 537. 37 As was done, for example, in Return to Work SA v Anderson [2018] SAET 70 (Hannon, Farrell and Dolphin DPJJ) (Anderson), discussed below. 38 AB 223. An amended report also dated 2 December 2013 arrived at the same impairment assessment concerning the left hip, AB 232, as did a further amended report of the same date, AB 241. 39 AB 223, 232, 241. 40 AB 243-244. 41 AB 248. 42 AB 249. 43 AB 251. 44 AB 254. -- 24 of 65 -- [2025] SASCA 48 The Court 21 following month, the worker’s solicitors sent a letter dated 4 October 2016 requesting that Dr D’Onise provide various WPI assessments, including of the worker’s left hip.45 62 In his report dated 31 October 2016, Dr D’Onise assessed the worker as having sustained a “poor” result and a 30% WPI of the left hip.46 63 By letter dated 22 December 2019, the worker’s solicitors wrote to Dr D’Onise, explaining that the matter had been listed for trial and an orthopaedic surgeon had been requested by the Corporation to consider the relationship between the worker’s left hip replacement and her employment.47 Various reports were sent to Dr D’Onise, including reports from Dr Sood, who had undertaken the left total hip replacement. 64 Notwithstanding his earlier reports, Dr D’Onise was again asked to consider whether the left hip injury had reached maximum medical improvement and to provide another assessment of left hip impairment. Dr D’Onise was also asked to consider whether there was any portion of the impairment that should be “disregarded” because the worker had received a prior assessment of 3% WPI for the left hip on the basis of a bursitis assessment.48 65 In his report dated 9 January 2020, Dr D’Onise recorded the results of his examination and expressed the opinion that the left hip joint degenerative changes were not the sole cause of the condition that was treated with surgery by Dr Sood.49 Again using AMA5, Tables 17.34 and 17.33, and the Guidelines, this time Dr D’Onise assessed a “fair” result with a 20% whole person impairment of the left hip, together with a minor contour defect for scarring with a 1% whole person impairment.50 66 On the question of the worker’s prior impairments, Dr D’Onise recorded a prior impairment of 3% whole person impairment for osteoarthritis, together with a 3% whole person impairment for bursitis.51 Dr D’Onise expressed the view that because the hip had been replaced, the prior “impairment of arthritis” had been re-sectored and “no longer exists”.52 67 Dr Graham Wright, occupational and pain physician, provided a number of reports. The first, dated 24 February 2012, was provided to the worker’s general practitioner. This report mainly concerned the worker’s other injuries, including her left and right shoulders, left and right ulnar neuritis, tendonitis at the left elbow, 45 AB 256-257. 46 AB 262. 47 AB 264-265. 48 AB 264-265. 49 AB 268. 50 AB 269-270. 51 AB 270. 52 AB 270. Which is an approach deprecated in a number of cases, including by Hannon DPJ in Khan [2019] SAET 11, discussed below. -- 25 of 65 -- [2025] SASCA 48 The Court 22 arthritis of the left thumb and possible early carpal tunnel syndrome bilateral. The worker was not working, and this was a major source of her stress.53 Dr Wright recommended chronic pain assessment.54 68 Employers Mutual, on behalf of the Corporation, wrote to Dr Wright on 31 August 2012 seeking a report. In his responding report dated 4 October 2012, Dr Wright reported on the worker’s array of symptoms, explaining that whilst there was no identifiable incident, they had arisen over time in the course of work as a cleaner.55 No reference was made to any back or left hip injuries. Dr Wright did not think that the worker would return to paid employment, but she should be able to maintain “domestic circumstances with relative comfort”.56 69 In a report dated 22 January 2014 sent to the worker’s solicitors, Dr Wright was asked to assess permanent impairment for various injuries, including the lumbar spine. As with Dr D’Onise, Dr Wright noted that a 2012 x-ray and ultrasound of the hips had revealed mild degenerative change in both hips and bilateral mild trochanteric bursitis.57 70 The worker provided a history of constant low back pain, worse with walking for five minutes and with stooping, lifting and carrying.58 Examination of the left hip revealed restriction and pain on palpation of her left greater trochanter.59 The worker walked with a mild limp.60 Dr Wright diagnosed aggravated degenerative change to the lumbar spine and left-sided trochanteric bursitis/gluteal tendonitis.61 71 Using Chapter 3 of the Guidelines and AMA5, Section 17.2, Table 17-33 concerning the hip, together with a diagnosis of chronic trochanteric bursitis with abnormal gait, he assessed permanent impairment at 3%.62 When combined with the 8% WPI attributable to the low back injury using the Combined Values Chart, Dr Wright arrived at an 11% WPI.63 Dr Wright tabulated his assessment in the following way:64 53 AB 274. 54 AB 275. 55 AB 283. 56 AB 285; See also report dated 1 July 2013, AB 286. 57 AB 288. 58 AB 290. 59 AB 292. 60 AB 292. 61 AB 293. 62 AB 296-297. 63 AB 297. 64 AB 299. -- 26 of 65 -- [2025] SASCA 48 The Court 23 Body part or system WorkCover Guidelines Chapter, page, table/figure AMA5 Chapter, page, table/figure % WPI Pre- existing % WPI Compensable % WPI lumbar spine chapter 4, page 29, paragraph 4.5 p 30, para 4.17, page 33, para 4.29, 4.30, 4.31 p 384, tab 15-3. 8% zero 8% Lower extremity Chapter 3 p25 para3.26 AMA 5, section 17.2, Tab 17-33, p 546 3% zero 3% Total (from Combined Values Chart AMA5) 11% WPI 2010 72 On 11 September 2015, Dr Wright provided a further report to the worker’s general practitioner. He expressed the opinion that the worker remained totally unfit to perform any work.65 73 The primary judge reviewed these medical opinions in the course of his reasons.66 The primary judge emphasised that AMA5 recognised that it may sometimes be more appropriate to assess WPI based on diagnosis rather than examination findings,67 and that this was reflected in Chapter 3 of the Guidelines:68 3.2 Assessment of the lower extremity involves physical evaluation, which can use a variety of methods. In general, the method should be used that most specifically addresses the impairment present. For example, impairment due to a peripheral nerve injury in the lowered extremity should be assessed with reference to that nerve rather than by its effect on gait. 3.3 There are several different forms of evaluation that can be used, as indicated in sections 17.2 to 17.2n, AMA5 (pp528-554). Table 17-2, AMA5 (p526) indicates which evaluation methods can be combined and which cannot. It may be possible to perform several different evaluations as long as they are reproducible and meet conditions specified below and in AMA5. The most specific method of impairment assessment should be used. 3.5 In the assessment process, the evaluation giving the highest impairment rating is selected. That may be a combined impairment in some cases, in accordance with the 65 AB 303. 66 Primary judge, [4], [16]-[18]. 67 Primary judge, [11,], AMA5 p 545. 68 Primary judge, [12]-[15]; Guidelines, chapters 3.2, 3.3 and 3.5. -- 27 of 65 -- [2025] SASCA 48 The Court 24 Table 17.2, AMA5 (p526) – Guide to the appropriate combination of evaluation methods table, using the Combined Values Chart, AMA5 (pp604-606). 74 The Guidelines reflect what is clear from AMA5, namely, that an examiner has available a number of different methods of assessing the impairment to a body part or system. Here that was concerned with the impairment to the worker’s lower extremity, her left hip. The 2014 Determination 75 Following the assessments undertaken by Dr D’Onise and Dr Wright in 2013 and 2014, on 6 March 2014 Employers Mutual on behalf of the Corporation made a determination regarding the worker’s lump sum entitlement for “a strain to the lower back and left hip injuries you sustained on 28/03/2010”.69 76 The correspondence leading to this determination does not appear to be in evidence. Whether another claim form was lodged is unclear. Certainly, another claim form is not in evidence. 77 What is clear is that both parties had available the medical reports which addressed the assessments made by Dr D’Onise and Dr Wright, and both parties must be taken to be aware that the worker’s left hip pathologies comprised both trochanteric bursitis and arthritic degeneration in the left hip, and that both were assessable. That is so notwithstanding the later evidence of Dr Sood that the worker’s left hip pathology worsened after early 2014.70 78 Whilst the assessment by Dr D’Onise took arthritis impairment into account, on his method of assessment it was not separately rateable, but necessarily incorporated into range of motion testing. Dr Wright’s assessment was used, presumably because it had produced the higher whole person impairment. The worker’s entitlement to compensation for non-economic loss was determined to be $20,427.71 79 On the same date, the worker’s claim for medical expenses associated with “your left hip injury” was also accepted in accordance with s 32 of the 1986 Act.72 80 The worker made a claim for her left hip injury or impairment. It had developed gradually as a consequence of her low back condition. How that injury was assessed for the purposes of a whole person impairment rating was a matter for the medical examiners. That the parties were apparently prepared to accept that left hip impairment was to be compensated on the basis of Dr Wright’s assessment did not mean that his assessment should be confused with what was claimed by the worker. 69 AB 145; Primary judge, [19]. 70 Dr Sood, examination-in-chief 12 April 2021, AB 332, lines 14-15. 71 AB 145. 72 AB 151. -- 28 of 65 -- [2025] SASCA 48 The Court 25 The second claim concerning left hip injury 81 After the worker received compensation for her various injuries, including for her low back and left hip in March 2014, by early September 2014 the worker had been referred to Dr Sood, an orthopaedic surgeon. This was associated with increased symptoms and problems with walking.73 82 The first report from Dr Sood, dated 7 February 2015, followed a request from Employers Mutual on behalf of the Corporation following a request for surgery made by the worker.74 Following examination, x-rays and an MRI revealing arthritis and trochanteric bursitis, Dr Sood diagnosed left hip arthritis and trochanteric bursitis. He expressed the opinion that it was highly likely the worker would require total hip replacement and a trochanteric bursectomy.75 83 Approval for surgery was sought.76 Whilst the evidence suggests that this was on the basis of the earlier determination approving medical expenses for “your left hip injury”, nothing turns on that. Following approval, Dr Sood performed a left total hip replacement on 25 May 2015, together with a trochanteric bursectomy.77 84 Subsequent reports from Dr Sood described the worker’s improvement in pain and her likely maximum medical improvement at 12 months following surgery.78 There was a 15% chance that the worker would require revision hip replacement in the next 15 years.79 Subsequent requests for reports, and Dr Sood’s responses, covered the same ground.80 Dr Sood did not provide an impairment assessment following the left total hip replacement and, as has been seen, that and various other assessments were provided by Dr D’Onise. 85 Following those impairment assessments, Dr Sood was asked to provide a further report.81 In his report dated 7 April 2021, Dr Sood expressed the view that it was highly likely, as had apparently been acknowledged by Dr Wright, that chronic trochanteric bursitis with abnormal gait resulted in accelerated chondral wear resulting in the need for hip replacement surgery.82 Dr Sood expressed the view that total hip replacement surgery was significantly due to the worker’s work injury and its sequelae.83 73 Worker’s affidavit sworn 4 December 2020, [59]-[68], AB 130-131. 74 AB 183-184. 75 AB 63. 76 AB 188. 77 Report of Dr Sood dated 26 May 2015, AB 189. 78 Report of Dr Sood dated 19 July 2015, AB 193. 79 AB 194. 80 Report of Dr Sood dated 27 September 2015, AB 198; Report of Dr Sood dated 19 February 2016, maximum medical improvement achieved following rehabilitation, AB 204; Report of Dr Sood dated 27 November 2016, AB 210. 81 AB 306. 82 AB 307. 83 AB 308. -- 29 of 65 -- [2025] SASCA 48 The Court 26 The 2017 Determination 86 Before that report, the worker’s solicitors had undertaken extensive correspondence with Employers Mutual on behalf of the Corporation, foreshadowing various, further claims for lump sum compensation for non-economic loss. 87 By letter dated 26 June 2016, the worker’s solicitors contended that the worker suffered from “a significant number of other impairments arising out of the trauma that occurred on 28 March 2010” for which the worker had not been compensated pursuant to Part 4, Division 5 of the 1986 Act, including for her left hip replacement:84 We put you on notice that our client will apply for a decision of her entitlement to receive lump sum compensation for non-economic loss pursuant to the Return to Work Act (Transitional Arrangements) (General) Variation Regulations 2015 for each of the ratable impairments that were not the subject of a decision prior to 1 July 2015 pursuant to Part 4, Division 5 of the repealed Act. Specifically, our client seeks compensation for non-economic loss as a consequence of the following injuries, conditions and impairments:- 1. Digestive impairment; 2. Impairment of mastication and deglutition; 3. Teeth grinding; 4. Left hip impairment due to a total left hip replacement performed on 26 May 2015. We will forward you permanent impairments with respect to the above conditions in the near future. We will then be seeking that a formal determination be made pursuant to s 43 and s 43A of the repealed Act. We consider that the application falls to be assessed by reference to the Return to Work Act (Transitional Arrangements) (General) Variation Regulations 2015 and not any provision of the Return to Work Act 2014. 88 It is clear that no claim was here being made for arthritic degeneration of the left hip joint. Rather, it was being suggested that the surgery had caused left hip impairment. 89 Employers Mutual on behalf of the Corporation responded on 14 July 2016, confirming that an application pursuant to sub-reg 5(4) of the Transitional Regulations been made by the worker within the “legislated timeframe”.85 90 Employers Mutual and the worker’s solicitors continued to correspond and, on 17 May 2017, Employers Mutual on behalf of the Corporation provided a 84 AB 309-310. 85 AB 311. -- 30 of 65 -- [2025] SASCA 48 The Court 27 determination.86 The 2017 determination addressed the extent to which the worker’s various claims were accepted or rejected. 91 In the case of the left hip, the claim was rejected on the basis that the worker had “no further entitlement to lump sum compensation for your left hip impairment”, as the worker had already received compensation for that. The 2017 determination referred to the 4 March 2014 (sic, 6 March 2014) determination regarding the entitlement to 11% WPI based on Dr Wright’s report dated 22 January 2014. Employers Mutual said that the worker’s compensation was paid on about 26 March 2014 and:87 Clause 44 of Schedule 9 of the [2014 Act] prevents a further assessment under Part 2 Division 5 of the [2014 Act] if a person’s non-economic loss has already been determined under Part 4 Division 5 of the [1986 Act] in respect of an existing injury and therefore no further assessment is required for your left hip injury. 92 Whilst the claim for the left hip impairment was rejected, the claim for digestive impairment was accepted. The claim for mastication and deglutition was rejected as the worker had failed to attend an independent medical examination. The consent orders made in February 2020 93 There was further correspondence between Employers Mutual on behalf of the Corporation and the worker’s solicitors during the period 2017 to 2020. 94 The worker has always been represented by the same solicitors. 95 Eventually, following negotiations, consent orders were entered in early 2020. On 12 February 2020 the following orders were made:88 With the consent of the parties I make the following orders:- 1. The decision of the Respondent [the Corporation] dated 17 May 2017 is confirmed insofar as it provides the worker has no further entitlement to lump sum compensation for left hip impairment. 2. The Applicant is entitled to costs of the proceedings and reasonable disbursements, to be agreed or fixed by the Tribunal. [Signed] His Honour Deputy President Judge Gilchrist 12 Feb 2020 86 AB 155-156. 87 AB 156. 88 AB 167. -- 31 of 65 -- [2025] SASCA 48 The Court 28 96 The terms of the consent order were discussed, and on 19 February 2020 a revised order was agreed between Employers Mutual on behalf of the Corporation and the worker’s solicitors as follows:89 With the consent of the parties I make the following orders:- 1. The order of the Tribunal dated 12 February 2020 is set aside. 2. The determinations of the respondent [the Corporation] dated 17 May 2017 that are the subject of 2262/2017 and 2268/2017 are confirmed. 3. Return to Work Corporation is to pay the applicant’s costs of these proceedings to be agreed or taxed. 4. These matters are removed from the callover on 2 March 2020. 5. The dispute that is the subject of 5320/2016 is adjourned for further directions on 3 March 2020 at 10am. [Signed] His Honour Deputy President Judge Gilchrist 19 Feb 2020 97 Whilst the correspondence surrounding the revision of these orders was marked for identification, it does not appear to have been tendered. No evidence was led from the solicitors or officers who agreed the revision. 98 Nonetheless it seems clear enough that the revision between the orders entered on 12 and 19 February 2020 took account of the need to preserve the worker’s position in relation to another claim for a different injury which is not the subject of this appeal. The new claim made in March 2020 99 It is against this background that, just 15 days later, the new claim form dated 6 March 2020 was lodged on behalf of the worker by her solicitors. 100 The explanation for this apparent change in position is provided by an accompanying letter from the worker’s solicitors, also dated 6 March 2020. In that letter, the worker’s solicitors explained that the claim was made on the basis of Mitchell, a decision of the Full Court delivered the previous year:90 Our client brings the claim on the basis that the left hip replacement surgery was compensable and that as a result of the surgery carried out, she has been left with a surgical impairment which is ratable by reference to the joint replacement surgery itself. It is noted that on the reasons of the Full Court of the Supreme Court in Return to Work Corporation v Mitchell [2019] SASCFC 34 that the phrase “arising out of the same trauma” 89 Tribunal order dated 19 February 2020, AB 316. 90 AB 169. -- 32 of 65 -- [2025] SASCA 48 The Court 29 must be construed in such a way as gives effect to the concept of individual injury. In a sense, it is clear that the surgery carried out on 26 May 2015 in respect of our client’s compensable left hip injury was an injury of and in itself, and is a rateable impairment. As the left hip replacement impairment is not from the same trauma as the hip injury for which the surgery was carried out to treat, our client is not precluded from an assessment of whole person impairment under Part 2, Division 5 of the [2014 Act] (i.e. cl 44 of Schedule 9 to the Return to Work Act 2014 has no application). As an existing injury (cl 29 of Schedule 9 to the [2014 Act]) the test for “compensability” is as set out in s 30 of the [1986 Act] and not the terms of the [2014 Act]. Our client says that the hip replacement is a surgical injury and is compensable by reference to s 30(3)(e) of the [1986 Act]. … In order to determine the claim, you will need to arrange an assessment of whole person impairment to be carried out under Part 2, Division 2 of the [2014 Act]. 101 What is clear from this letter is that the worker was now contending that the left hip surgery “was an injury of and in itself, and is a rateable impairment”. No claim was being made for arthritic degeneration of the left hip joint. Indeed, no claim was being made for the worker’s left hip injury, because “the left hip replacement impairment is not from the same trauma as the hip injury for which the surgery was carried out to treat”. 102 By letter dated 17 March 2020, Employers Mutual on behalf of the Corporation rejected the claim following a re-determination which relied, additionally, on s 7(6) of the 2014 Act.91 103 The worker then commenced fresh proceedings in the Tribunal.92 104 The worker’s application in the Tribunal identified the injury for which lump sum compensation was claimed as a “surgical injury”, separate to the left hip injury.93 The application described the surgical injury as an “existing injury” within cl 29 of Schedule 9 to the 2014 Act. It was said that the surgical injury did not arise from the “same trauma” as the left hip injury and was, therefore, not precluded by cl 44 of Schedule 9 to the 2014 Act. As with the earlier correspondence, reliance was again placed on Mitchell.94 The cross-examination of Dr Sood 105 The trial before the primary judge commenced with evidence from Dr Sood on 12 April 2022. The following day, evidence was tendered and counsel delivered 91 AB 174. 92 AB 176. 93 AB 177. 94 AB 177. -- 33 of 65 -- [2025] SASCA 48 The Court 30 their final addresses. These and the “Statements of Issues and Contentions” will be addressed in connection with appeal ground 3, below. 106 During the course of his evidence before the primary judge, Dr Sood explained that the left hip arthritis and left hip trochanteric bursitis were separate conditions and the total left hip replacement and trochanteric bursectomy were separate surgical procedures.95 107 The primary judge did not, however, refer to or make any findings about the cross-examination of Dr Sood and his evidence to the effect that: 1. the left trochanteric bursitis and the acceleration of the left hip arthritis were both consequences of the lumbar spine injury;96 2. the chronic trochanteric bursitis with abnormal gait and deconditioning resulted in accelerated chondral wear, suggesting a causal link between the bursitis and the chondral wear, and it was the culmination of all of these that aggravated the underlying degenerative changes in the left hip and which led to the need for joint replacement;97 and 3. the left total hip replacement surgery involved no complications and resulted in significant improvement in overall function - it worked as it was intended to work.98 108 The failure to make findings about these matters, and address their significance in his reasons, could support a contention that the reasons of the primary judge were inadequate. 109 That, however, was primarily agitated by the worker, and then only to the extent earlier explained in connection with the question of leave to appeal.99 More importantly, whilst the worker on appeal suggested that remittal may be necessary, this was on account of the failure by the primary judge to address the worker’s arthritis, or underlying degenerative changes, in her left hip. This was said to be significant if the worker had at trial made a discrete claim for her left hip arthritis. Again, that will be addressed in connection with appeal ground 3, below. The reasons of the primary judge 110 At trial, the worker contended that the left total hip replacement surgery produced an injury different to the left hip injury which was separately assessable 95 Primary judge, [20]-[22]. 96 Examination-in-chief of Dr Sood, AB 331, line 15; cross-examination of Dr Sood, AB 334, line 20; AB 335, lines 20-25; AB 337, lines 10-20. 97 Examination-in-chief of Dr Sood, AB 331, line 32; cross-examination of Dr Sood, AB 337, lines 10-20. 98 Cross-examination of Dr Sood, AB 332, line 35 to AB 333, line 35, “complete resolution of pre-operative arthritic pain”. 99 Had it not been clear that the worker had made and resolved a left hip claim, and was not pressing that as part of the so-called “surgical injury”, it may have been necessary to hear from the parties regarding remittal. -- 34 of 65 -- [2025] SASCA 48 The Court 31 pursuant to s 22 of the 2014 Act.100 The primary judge described the worker’s contention as “counter intuitive”:101 It might be thought to be counter intuitive to suggest that successful corrective surgery can be a compensable injury that results in an assessable impairment. But as was explained in Cepon v Return to Work, in the context of a ‘highly prescriptive scheme of assessment that is often based on check lists and specified criteria’102 this can occur. In that case the worker injured his left leg in compensable circumstances for the purposes of the [1986 Act] in 2010. He ruptured his anterior cruciate ligament and required a total knee reconstruction. That reconstruction ultimately failed as did another. In 2016 and 2017 he underwent a series of surgeries to his left leg that included a total medial meniscetomy and a proximal tibial osteotomy. Both surgical procedures were assessable in their own right under Table 17.33 of AMA5. Even though the surgeries were successful and brought Mr Cepon relief, it was held that they were injuries for the purposes of the [2014 Act] and that as they had resulted in rateable impairments that were assessable under s 22 of that Act. (Citations in original.) 111 The decision referred to in this passage, Cepon, is a decision of the primary judge.103 The reasoning in that first instance decision was later questioned by the Full Bench.104 112 As will be seen, the differently constituted Full Bench in this matter distinguished that decision, in part because it was said that the Full Bench in Cepon did not address “whether the effects of subsequent surgery to treat an existing injury could be treated as a separate injury”.105 113 The primary judge considered whether the so-called “surgical injury” was compensable as “arising out of or in the course of employment”.106 114 After referring to extensive authority,107 the primary judge acknowledged that “an employee who is encouraged by his or her employer to see a doctor after working hours is not ordinarily within the course of employment if injured while visiting the doctor …”.108 Where the hip replacement surgery had occurred five years after the worker had stopped working, the primary judge concluded that the “requisite connection has not been made out”.109 100 Primary judge, [1]. 101 Primary judge, [41]. 102 [2020] SAET 195, [88]. 103 Cepon [2020] SAET 195 (Gilchrist DPJ). 104 Cepon [2022] SAET 32 (Calligeros, Kelly DPJJ and Cole DP). 105 Full Bench, [96]-[97]. 106 Primary judge, [71]-[86]. 107 Such as Park v Peach [1967] VR 558; Hatzimanolis v ANI Corporation (1992) 173 CLR 473 (Mason CJ, Deane, Dawson and McHugh JJ); Transadelaide v Karanicos [1996] SASC 5536 (Doyle CJ); Peet v Workers Rehabilitation and Compensation Corporation (1996) 66 SASR 474, (Doyle CJ, with whom Duggan J agreed, Debelle J dissenting). 108 Hatzimanolis v ANI Corporation (1992) 173 CLR 473, 482-483 (Mason CJ, Deane, Dawson and McHugh JJ). 109 Primary judge, [85]. -- 35 of 65 -- [2025] SASCA 48 The Court 32 115 The primary judge then considered whether s 30(3)(e) of the 1986 Act provided “an alternative route through which a surgical injury may be compensable”.110 By s 30(3)(e) of the 1986 Act: A worker’s employment includes – … (e) attendance at a place to receive a medical service, to obtain a medical report or certificate (or to be examined for the purpose), to participate in a rehabilitation program, or to apply for, or receive, compensation for a compensable disability. 116 The primary judge described this as a “statutory deeming provision”,111 and recognised that it is only “to be carried as far as is necessary to achieve the legislative purpose and no further”, after which “there may be no reason to prefer fiction to truth”.112 117 When examining whether s 30(3)(e) might permit a claim to be made for the consequences of surgery as a new injury, assessable under s 43 of the 1986 Act,113 the primary judge referred to Neilson v Department for Health and Ageing.114 In that case, the worker had injured her left knee in 2011 and underwent a total knee replacement in 2014. The judge in that case held that the total knee replacement was not a separate injury for the purposes of a separate s 43 assessment, but a component of the long-running series of treatments required for the worker’s left knee injury.115 The primary judge then observed:116 There are a number of aspects of the s 43 assessment process that do not sit comfortably with the notion that the consequences of surgery undertaken in respect of an injury that has been the subject of a previous determination of WPI, can be the subject of fresh assessment and entitlement if the claim is made on the basis of a new deemed injury. 110 Primary judge, [87]-[106]. 111 Primary judge, [91]. 112 Primary judge, [93] quoting DEG Deutsche Investments v Koshy [2001] 3 All ER 878, 883 (Robert Walker LJ, as his Lordship then was); see Return to Work Corporation of South Australia v Watkins [2017] SASCFC 149, [36] (Stanley J, with whom Kourakis CJ and Nicholson J agreed): “Deeming provisions are required by their nature to be construed strictly and only for the purpose for which resort is had to them”. 113 Why the primary judge referred to s 43 and not s 58 given the way the worker presented her case is not clear. 114 Neilson v Department for Health and Ageing [2016] SAET 77 (Dolphin DP). The appeal against that decision was allowed by the Full Bench, Department of Health and Ageing v Neilson [2017] SAET 136, [31]-[32] (Gilchrist, Hannon and Calligeros DPJJ) on the basis that a deduction for pre-existing impairment was required. 115 Primary judge, [95]-[96]; Neilson v Department for Health and Ageing [2016] SAET 77, [53]-[54] (Dolphin DP), where Lovatt v WorkCover/Employers Mutual Ltd (Virginia Nursey Pty Ltd) [2008] SAWCT 31 (McCouaig DP) and WorkCover Corporation/Employers Mutual Ltd (Virginia Nursey Pty Ltd) v Lovatt [2008] SAWCT 61 (Jennings PJ, McCusker and Gilchrist DPJJ) were distinguished where surgery was treated as a new compensable event for the purposes of re-calculating weekly payments. 116 Primary judge, [97], AB 40. -- 36 of 65 -- [2025] SASCA 48 The Court 33 118 The primary judge considered a number of cases and provisions,117 before expressing his conclusion that s 30(3)(e) could not extend to claims under s 43 that had already been the subject of an assessment for “the same injury”:118 I appreciate that s 30(3)(e) of the [1986 Act] is about compensability whereas s 43A is about assessing impairment. But I think it is arguable that in order to reconcile the edict given in s 43A of the [1986 Act] that the impairment assessment for a compensable injury is to take into account any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of that injury, the reach of the statutory fiction created by s 30(3)(e) of the [1986 Act] must be construed so as not to extend to claims for compensation under s 43 that have already been the subject of an impairment assessment and determination for the same injury. 119 The primary judge thought that this was consistent with Khan, but he recognised that there was “some tension” between the approach taken in Khan and the approach his Honour had taken in Cepon.119 120 Ultimately, the primary judge held that the earlier determination only concerned the worker’s trochanteric bursitis and did not reflect compensation for left hip arthritis, and because the left hip replacement “was necessary to alleviate pain associated with her left hip arthritis” the surgical injury was not precluded.120 121 Although the primary judge held that Dr Wright had made no finding of arthritis, nor any mention of it in his report, it will be recalled that Dr Wright had referred to the 2012 x-ray and ultrasound investigations which had revealed degenerative changes in both hips and bilateral mild trochanteric bursitis.121 122 On the question whether the claim for the new surgical injury was barred by cause of action estoppel, the primary judge referred to the observation made by Edelman J in Clayton v Bant to the effect that much can depend upon the level of generality at which the claim is characterised.122 The primary judge held that for the plea to succeed it must be “clearly and unambiguously established”.123 On the basis that the Corporation’s determination of left hip impairment did not include anything for arthritis:124 The consent order should not be seen as leading to a contrary conclusion. It therefore does not create a cause of action estoppel that defeats the current claim. 117 Including s 43A(8) of the 1986 Act and Khan [2019] SASCFC 150, [29] (Kourakis CJ, with whom Peek and Doyle JJ agreed). 118 Primary judge, [102]. 119 Primary judge, [103]-[104]. 120 Primary judge, [105]. 121 Primary judge, [106]. 122 Primary judge, [107]; Clayton v Bant (2020) 272 CLR 1, [68], referring to Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406, 418 (Gummow J). 123 Primary judge, [108], citing Salmon Street Ltd (in liq) v Jorgensen (1991) 56 SASR 158, 164 (Cox J). 124 Primary judge, [109]. -- 37 of 65 -- [2025] SASCA 48 The Court 34 123 The worker was therefore held to be entitled to an assessment under s 22 of the 2014 Act for any impairment resulting from the surgical injury.125 The reasons of the Full Bench 124 The Full Bench addressed four grounds of appeal by the Corporation. The first concerned the absence of a finding that there was a compensable injury by way of left hip arthritis, the second was that the primary judge erred in finding that surgery ameliorative of a compensable injury constituted a separate compensable injury under the 1986 Act, the third concerned whether s 43A(8) of the 1986 Act effectively precluded a further assessment arising from surgery to the same body part, and the fourth was that the primary judge erred in not finding that cause of action estoppel applied.126 125 The Full Bench found that the parties had proceeded on the basis that “separate from a compensable trochanteric bursitis injury” the worker had:127 … a compensable injury of the left hip joint being an acceleration of the degenerative process … the issue identified by the parties … is whether [the worker] is entitled to be assessed as to permanent impairment in relation to the right hip joint injury [sic, left hip joint injury] … 126 As for appeal grounds 2, 3 and 4, the Full Bench described “the unchallenged evidence of Dr Sood that the left hip arthritis was a separate condition to the left hip trochanteric bursitis and that two separate surgical procedures were performed”.128 The Full Bench then explained that the primary judge made no error of law in concluding that the worker’s claim was not precluded by cause of action estoppel:129 There was also a finding that the prior assessment of permanent impairment and payment for non-economic loss, was for impairment related to the trochanteric bursitis and that there had been no assessment nor payment for impairment of the hip as a result of the acceleration of what was otherwise a degenerative condition. There was no error of law in the trial judge then concluding that [the worker] was not precluded from seeking an assessment of permanent impairment under s 22 of the [2014 Act] by application of the principle of cause of action estoppel. That is because no ultimate issue of either fact or law in [the worker] seeking an assessment of permanent impairment under s 22 of the [2014 Act] for acceleration of left hip joint arthritis was resolved by the order dated 12 February 2020 [sic, 19 February 2020], which affirmed that there could be no further entitlement under s 43 of the [1986 Act] for impaired hip function arising from the injury of trochanteric bursitis. 127 The Full Bench held that cl 44 of Part 10 of Schedule 9 to the 2014 Act did not preclude the worker’s claim because the impairment of hip function arising 125 Primary judge, [111]. 126 Full Bench, [35]-[38]. 127 Full Bench, [68]. 128 Full Bench, [86]. 129 Full Bench, [87]-[88]. -- 38 of 65 -- [2025] SASCA 48 The Court 35 from the surgery to treat the left hip joint was neither the same injury as trochanteric bursitis nor did it arise from the same trauma.130 128 The Full Bench held that the judgment of the Full Bench in Cepon, and the judgment of the Full Court in Khan, did not give rise to a different outcome:131 In Cepon, the issue before the Court was whether surgery performed after the commencement of the operation of the [2014 Act] on 1 July 2015, to treat work injuries sustained prior to that date, could give rise to an entitlement to a lump sum payment for economic loss under s 56 of the [2014 Act] where there was no such entitlement under the [1986 Act]. It was held that no such entitlement could arise. The Full Bench in Cepon did not address the question of whether the effects of subsequent surgery to treat an existing injury could be treated as a separate injury. The judgment did not address the construction of s 30(3)(e) of the [1986 Act]. In Khan, the worker sustained multiple injuries on 17 January 2009. On 24 April 2013 a consent determination was made by the former South Australian Workers Compensation Tribunal of entitlement to lump sum payment for non-economic loss under s 43 of the [1986] Act by reference to an assessment of permanent impairment of 26% WPI and which included a 9% WPI in relation to the right knee. At that time both Mr Khan and the Corporation were aware that he intended to proceed with a total right knee replacement procedure. That procedure was performed on 27 May 2013. Mr Khan subsequently sought an additional award of lump sum compensation pursuant to s 43 of the [1986 Act] on the basis that the impairment attributable to the right knee had increased by reason of the surgery performed. Critical to the outcome is that Mr Khan sought a further lump sum payment for the outcome of surgery to treat the same injury which had been already the subject of an award of compensation under s 43 of the [1986 Act]. It was held that s 43 provides only for a single award of lump sum compensation for the same compensable injury.132 (Citations in original.) 129 The Full Bench held that the reasoning in Khan would preclude any further claim arising from the trochanteric bursectomy surgical procedure, but not surgery following the acceleration of degenerative changes to the left hip joint.133 The appeal was dismissed. The determination of the appeal 130 It is convenient to commence with appeal grounds 2 and 4. The debate between the parties centred on whether it was an error of law for the primary judge and the Full Bench to recognise the existence of a “surgical injury” following hip 130 Full Bench, [95]. 131 Full Bench, [97]-[101]. 132 Khan Ibid [14] and [26] per Kourakis CJ (with whom Peek J and Doyle J agreed). 133 Full Bench, [102], AB 74. -- 39 of 65 -- [2025] SASCA 48 The Court 36 replacement in 2015, separate from the worker’s left hip injury claim which was accepted in 2014. Appeal grounds 2 and 4: The one claim, one assessment principle The contentions of the parties 131 The Corporation placed principal reliance on the decision of the Full Court in Khan,134 as well as on an earlier Full Bench decision, Return to Work SA v Anderson.135 It will be necessary to address these shortly. 132 The Corporation also relied on s 43A(8) of the 1986 Act and cl 44 of Schedule 9 to the 2014 Act. The Corporation argued that it followed from the reasoning of the Full Court in Khan,136 and the operation of the one assessment principle provided for in s 43A(8) of the 1986 Act, that a second application for compensation for the same body part that had been the subject of a prior determination was precluded. 133 This issue was not addressed, the Corporation argued, because of the mischaracterisation of the relevant injury as a surgical injury, which was an error of law. 134 In consequence, the worker’s claim for the so-called “surgical injury” was precluded by cl 44 of Schedule 9 because it was a claim for non-economic loss concerning the left hip injury which had been finally determined, both by payment and the consent orders entered on 19 February 2020, following the 2017 determination that the worker had no further entitlement to lump sum compensation for left hip impairment due to a total hip replacement. The Corporation contended that that determination had been made in response to the worker’s application under sub-reg 5(4) of the Transitional Regulations and represented a determination that the worker was not entitled to compensation for non-economic loss concerning a left hip injury pursuant to Part 4, Division 5 of the 1986 Act. 135 The Corporation contended that by concluding that cl 44 did not apply, the Full Bench mischaracterised the relevant injury as a matter of law: it was not a surgical injury but an aggravation of the worker’s left hip injury. 136 The worker’s response really commenced with the proposition that, by virtue of cll 29(1)(a) and 29(3) of Schedule 9 to the 2014 Act, the 2014 Act applied to the surgical injury, and that included the claim which may be made under s 58 following an assessment undertaken under s 22 of the 2014 Act. 134 Khan [2019] SASCFC 150 (Kourakis CJ, with whom Peek and Doyle JJ agreed). 135 Anderson [2018] SAET 70 (Hannon, Farrell and Dolphin DPJJ). 136 Khan [2019] SASCFC 150 (Kourakis CJ, with whom Peek and Doyle JJ agreed). -- 40 of 65 -- [2025] SASCA 48 The Court 37 137 The worker contended that, in a claims-based system,137 s 22 of the 2014 Act contained no bar to a worker seeking an assessment, or choosing to make a claim in respect of, an injury attributable to surgery resulting in permanent impairment, so long as there was compliance with the relevant operative provisions. 138 The worker also contended that there was nothing in either s 22 of the 2014 Act, or the 2014 Act as a whole, to support the proposition that an injury attributable to surgery should not be treated as an injury for permanent impairment purposes and the reasoning to the contrary by the Full Bench in Cepon v Return to Work Corporation of South Australia was wrong and should not be followed.138 139 In any event, the worker contended that Cepon is distinguishable because the relevant surgery was performed after the commencement of the 2014 Act and was subject to the operation of s 7(6) of that Act. By contrast, as the worker’s left hip replacement was conducted before 1 July 2015, cl 30 of the Transitional Provisions in Sch 9 to the 2014 Act required that the relevant connection with employment be determined under s 30 of the 1986 Act, without regard to s 7(6) of the 2014 Act. 140 The worker contended that, even if s 7(6) of the 2014 Act applied, the injury attributable to the surgery must be taken to constitute part of the original work injury and does not have the effect that impairment resulting from surgery is not assessable under s 22 of the 2014 Act. 141 The worker contended that s 22(7)(b) of the 2014 Act did not prohibit the assessment of impairment resulting from an injury attributable to surgery and required only that the impairment assessment include any changes in the signs and symptoms following surgery. The worker also contended that s 22(10) of the 2014 Act had no application because there had been no assessment made under s 22 of the 2014 Act. 142 The worker then relied on cll 44 and 69 of Schedule 9 to the 2014 Act. The latter permitted the promulgation of reg 5 of the Transitional Regulations. In consequence, the worker contended, reg 5 of the Transitional Regulations did not respond to the claim for lump sum compensation under s 43 of the 1986 Act, because the relevant injury had not been the subject of a determination made before 1 July 2015. That injury, the surgical injury, was a distinct and separate injury to the injury the subject of the earlier determination made on 6 March 2014. The worker relied upon what was contended to be the necessary consequence of the analysis undertaken by the Full Court in Mitchell.139 143 The worker ultimately relied on the distinction drawn by the primary judge and accepted by the Full Bench, that the arthritic condition and the impairment 137 Citing Australian Eagle Insurance Co Ltd v Federation Insurance Ltd (1970) 15 SASR 282; Wardleworth v Green (1996) 66 SASR 421; Workers Rehabilitation and Compensation Corporation v Hillier & Van Wyk (1997) 193 LSJS 57; Stephenson v Return to Work Corporation of South Australia (2019) 134 SASR 141 (Stephenson). 138 Cepon [2022] SAET 32, [64] (Calligeros, Kelly DPJJ and Cole DP). 139 Mitchell (2019) 135 SASR 315, [44]-[54] (Stanley J, with whom Kourakis CJ and Hinton J agreed). -- 41 of 65 -- [2025] SASCA 48 The Court 38 “therefrom” had not been the subject of any determination made under s 43 of the 1986 Act before July 2015. 144 The worker contended that cl 44 of Schedule 9 to the 2014 Act did not preclude her claim because the surgical injury could not be regarded as the same injury, nor did it arise from the same trauma. 145 The worker distinguished Khan because that worker sought further compensation under reg 5 of the Transitional Regulations after an operative procedure for the same injury which had been the subject of a determination of lump sum compensation under s 43 of the 1986 Act.140 The worker distinguished the decision of the Full Bench in Anderson because there had been an assessment of the arthritic condition in the left hip at the time of the assessment which led to the determination of lump sum compensation pursuant to s 43 of the 1986 Act.141 Determining appeal grounds 2 and 4 146 Before addressing the contentions of the parties, it is first helpful to consider the decision of the Full Court in Mitchell, which was relied on to explain, if not justify, the new claim made in March 2020.142 147 It is at the outset necessary to recognise that Mitchell was not concerned with compensability or assessment but only with combination under s 43(6) of the 1986 Act. The Full Court held that the Full Bench in that case erred in applying tests of compensability when applying s 43(6) of the 1986 Act.143 148 In the passage relied on by the worker, it is implicit that the surgical and medical treatments which may be characterised as “separate and distinct” from the original compensable injury each had deleterious consequences,144 with “distinct physiological changes”, such as when a worker suffers injury during treatment by a medical expert.145 149 That Mitchell is not concerned with the one claim, one assessment principle is made clear by the way in which s 43A(8)(b) was addressed:146 … The principles of assessment prescribed by s 43A and the Guidelines made under that section apply to impairments resulting from identified compensable injuries. Those principles cannot derogate from the governing provisions of s 43. The application of the principle prescribed by s 43A(8)(b) allowing for an assessment based on the worker’s current impairment as at the date of assessment, including any changes in the signs and symptoms following any medical or surgical treatment in respect of that compensable 140 Khan [2019] SASCFC 150, [7] (Kourakis CJ, with whom Peek and Doyle JJ agreed). 141 Anderson [2018] SAET 70, [56]-[59] (Hannon, Farrell and Dolphin DPJJ). 142 Mitchell (2019) 135 SASR 315 (Stanley J, with whom Kourakis CJ and Hinton J agreed). 143 Mitchell (2019) 135 SASR 315, [42]-[43] (Stanley J, with whom Kourakis CJ and Hinton J agreed). 144 Mitchell (2019) 135 SASR 315, [44]-[45] (Stanley J, with whom Kourakis CJ and Hinton J agreed) 145 Mitchell (2019) 135 SASR 315, [48] (Stanley J, with whom Kourakis CJ and Hinton J agreed). See also the references in [52]-[53] to “an injury-specific assessment” made under s 43A(8) and the existence of “separate compensable injuries in this case”. 146 Mitchell (2019) 135 SASR 315, [51] (Stanley J, with whom Kourakis CJ and Hinton J agreed). -- 42 of 65 -- [2025] SASCA 48 The Court 39 injury, cannot be applied so as to allow injuries which do not arise from the same event or series of events, to be treated as though they did. To do so would be inconsistent with the reasoning in Marrone. Mitchell is not authority for the proposition that the treatment of a work injury by surgery will inevitably result in a separately assessable injury, described as a “surgical injury”. That would be inconsistent with the effect of s 43A(8)(b), and the ruling made by the Full Court in Khan that there can be only one claim for non-economic loss, even if it is made before surgical treatment.147 Mitchell does not support the worker’s 2020 claim. 150 The acceptance of the proposition that there is but one cause of action for compensation for non-economic loss for each work-related injury, necessarily involves acceptance of the associated proposition that that claim depends upon one whole person impairment assessment. As has been seen, under s 43(1) of the 1986 Act, the cause of action required proof of the following elements concerning each compensable injury, where any fact is determined on the balance of probabilities as s 31(1) required:148 1. Proof that the worker suffered an injury which is compensable within s 30 of the 1986 Act; 2. Which injury resulted in permanent impairment; and 3. Which impairment is assessed in accordance with s 43A and the Guidelines.149 151 In addition, the assessment of the degree of impairment resulting from an injury must be made by the medical examiner after the injury has stabilised, and be based on the worker’s “current impairment as at the date of assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury” and comply with the Guidelines.150 152 The amount of the lump sum awarded to a worker is a portion of the prescribed sum, calculated in accordance with the regulations.151 It is necessary to satisfy the requirements of Schedule 3, though the table in Schedule 3A may be relevant.152 153 It is next appropriate to address the decision in Khan. Khan is authority for the proposition that s 43 permits only one award of lump sum compensation by 147 Khan [2019] SASCFC 150, [14], [29] (Kourakis CJ, with whom Peek and Doyle JJ agreed). 148 See, for example, the approach taken by Hannon DPJ in Martin v Return to Work SA (Stratco Pty Ltd) [2016] SAET 39, [288] at first instance. 149 1986 Act, ss 43(1) and 43(10). 150 1986 Act, ss 43A(8) and 43A(9). 151 1986 Act, s 43(2). 152 1986 Act, ss 43(3) and 43B. -- 43 of 65 -- [2025] SASCA 48 The Court 40 way of non-economic loss for the same compensable injury, essentially for the reasons given by the majority of the Full Bench in that case.153 154 The proposition that only one claim for lump sum non-economic loss may be made for each compensable work injury is not new. For example, in Salmon St Ltd v Jorgensen, which concerned an award of lump sum compensation under the Workers Compensation Act 1971 (SA), King CJ explained:154 The Workers Compensation Act does not create a single cause of action for compensation for injury sustained in a particular accident. A worker may under this Act, as was the case under the Commonwealth Employees' Compensation Act 1930 (Cth) which was considered in Commonwealth v Matheson (1955) 93 CLR 403, be compensable separately in respect of disparate injuries sustained in the same accident and may pursue separate claims in respect of such injuries. Thus where a worker sustained a leg injury and a back injury in the same accident, it was held that the receipt of a lump sum for the leg injury did not disentitle the worker to subsequent weekly payments in respect of the back injury: see Lee v Commonwealth (1971) 18 FLR 400. … If, however, a claim in respect of a particular injury or impairment is pleaded in the proceedings and is the subject of a determination either granting compensation or dismissing the claim, the claim in respect of that injury or impairment merges in the determination and subsequent proceedings for the determination of a disputed claim in respect of the same injury or impairment would be barred as res judicata. (Citations omitted.) 155 In the same case, Cox J explained that a worker was not necessarily required to make all claims at the same time, and the need for the final medical assessment of an injury may warrant waiting:155 … while the Workers Compensation legislation permits a worker to make successive claims for different injuries suffered on the one occasion, it is obviously desirable that all table injury claims, for instance, be made at the same time if that can reasonably be done, and it would be unfortunate if the decision in this case were to lead anyone to think otherwise. Sometimes the latency of a second injury or the need to wait before a final medical assessment can be made will justify splitting the claims, but the worker who brings multiple applications without some such justification is likely to be met with an argument that he be penalised in costs. 156 Similarly, in 1995 Judge Gilchrist gave a similar explanation regarding the then version of s 43 in Baldacchino v Monier Roofing, admittedly at a time before the introduction of s 43A:156 153 Khan [2019] SASCFC 150, [14], [29] (Kourakis CJ, with whom Peek and Doyle JJ agreed). 154 Salmon St Ltd v Jorgensen (1991) 56 SASR 158, 161-162 (King CJ, with whom Cox and Bollen JJ agreed). 155 Salmon St Ltd v Jorgensen (1991) 56 SASR 158, 164 (Cox J). 156 Baldacchino v Monier Roofing [1995] SAWCAT 114, 3 (Gilchrist DP). Note the caution expressed in Khan [2019] SAET 11, [31] (Hannon DPJ). -- 44 of 65 -- [2025] SASCA 48 The Court 41 … I reject the suggestion that Section 43 permits the making of interim assessments subject to refinement to reflect changes in the level of the worker’s disability. It seems to me that such a suggestion is contrary to the very spirit of a payment pursuant to Section 43. The very fact of the assessment, itself, is reflective of the permanency of the disability. … Subject to the inherent inaccuracy of the assessment to which I have earlier referred, the worker either has a permanent disability or has not. There is no middle ground. Once the assessment is made, it can only be altered, if successfully reviewed. 157 Clearly enough, what comprises a compensable injury was central to the operation of s 43. It was also central to the outcome in Khan’s case. The injury in that case was a compensable body part, the right knee, and that was not to be confused with the way in which any impairment from that injury might be diagnosed and assessed for the purposes of the Guidelines and AMA5. 158 In Khan, the worker was assaulted on 17 January 2009 and sustained a number of injuries in compensable circumstances. The medical examiners adopted different methods when assessing right knee impairment. On 24 April 2013, a consent determination was made in the Tribunal, based on a WPI of 26%, which included a 9% impairment of the worker’s right knee. The worker was awarded just over $61,000.157 159 At that time, it was known that the worker had an arthritic knee and surgery was required. One booking for right total knee replacement surgery was cancelled, but another was planned, albeit at the worker’s own expense. After the worker underwent the right knee replacement, he decided to make a claim, asserting that he was left with greater impairment.158 There was also an issue about the extent to which any adjustment for pre-existing arthritis was required. 160 It is important to interpolate here that, whilst the worker’s knowledge might appear to be relevant, it is not. The operation of the one claim, one assessment principle depends on the way in which the statute applies to the objective facts as found. Knowledge may, however, possibly be relevant in the event of an application to set aside.159 161 Dr D’Onise assessed a 30% whole person impairment but made no allowance for past arthritis because there was no arthritis left after the use of a prosthetic knee.160 162 Mr Khan’s claim for further non-economic loss was heard and dismissed by the President of the Tribunal, who held that the claim was barred by either res judicata or cause of action estoppel when the entitlement to lump sum 157 Khan [2019] SASCFC 150, [1]-[2] (Kourakis CJ, with whom Peek and Doyle JJ agreed). 158 Khan [2019] SASCFC 150, [3] (Kourakis CJ, with whom Peek and Doyle JJ agreed). 159 Provided it transcends subjective knowledge and concerns matters known to both parties, Nemesis v Meatpak Australia Pty Ltd [2020] SASCFC 22, [30] (Kourakis CJ, with whom Nicholson and Parker JJ agreed). 160 Khan [2019] SASCFC 150, [8] (Kourakis CJ, with whom Peek and Doyle JJ agreed). -- 45 of 65 -- [2025] SASCA 48 The Court 42 compensation pursuant to s 43 had been finally and conclusively determined before the knee replacement. There was “no right knee entitlement left”.161 163 President McCusker held that if it had been open to make a further award, it would have been necessary to take into account the worker’s pre-existing impairment and, in any event, he would likely have dismissed the claim because he was not satisfied that the worker had in fact sustained any increased impairment.162 164 The appeal to the Full Bench was, by a majority, dismissed.163 The majority, Hannon and Calligeros DPJJ, gave separate reasons. 165 Judge Hannon observed that the three examiners adopted differing methods of assessing the worker’s right knee impairment under AMA5 and the Guidelines, including measuring the range of motion and measuring joint space narrowing.164 His Honour then described why only one claim could be made:165 Subject to the [Guidelines], the permanent impairment must be assessed in accordance with AMA5. In this case, the 2012 assessment had to be made having regard to the principles set out in AMA5 Chapter 17, relating to the ‘The Lower Extremities’. For evaluation purposes, the lower extremities were divided into six sections, comprising the feet, the ankles, the legs, the knees, the hips, and the pelvis. Under Chapter 17.2, thirteen assessments methods were available, most mutually exclusive, but some not. The evaluator was required to first establish the diagnosis, then whether the individual had reached [maximum medical improvement], then identify the part or parts of the lower extremity that might warrant an impairment rating. The assessor then had to conduct an evaluation, and select the most appropriate and specific evaluation method or methods to produce the most clinically accurate impairment rating. There was no limitation in the 1986 Act, as there now is under s 22(10) of the [2014 Act], with respect to the number of assessments which might be made in respect of the degree of permanent impairment of a worker from one or more injuries (including consequential injuries). Nor was a worker limited, as is now the case under s 58(9) of the [2014 Act], to only one claim for lump sum payments in respect of any impairment or impairments that resulted from one or more injuries (including consequential injuries) arising from the same trauma. However, despite the absence of a similar specific limitations, I consider that the 1986 Act does not permit more than one claim for compensation with respect to impairment of a body part where a claim in respect of permanent impairment of that body part has been made and compensated by determination or consent order. That is, it does not permit further claims with respect to different and increased impairment assessments of the same body part, whether or not that increased impairment results from a deterioration or other change in circumstances, following the occasion of the first assessment. … The right to claim compensation for ‘permanent impairment’ arises only where the injury has stabilised, where the ‘current impairment’ has been assessed having regard to 161 Khan [2017] SAET 126, [46] (McCusker PJ). 162 Khan [2019] SASCFC 150, [49] (McCusker PJ). 163 Khan [2019] SAET 11. 164 Khan [2019] SAET 11, [5]-[7] (Hannon DPJ). 165 Khan [2019] SAET 11, [22]-[27] (Hannon DPJ). -- 46 of 65 -- [2025] SASCA 48 The Court 43 any medical and surgical treatment undergone on the path to stability, and where the degree of permanent impairment is ‘fully ascertainable’ and at [maximum medical improvement]. The combination of these requirements in the context of a claim assuming permanency of impairment compellingly points to the conclusion that only one claim can be made. The cause of action which arose as a result of Mr Khan’s compensable right knee injury under s 43 of the 1986 Act was a right to claim compensation with respect to any resultant permanent impairment of that body part. In my opinion, having regard to the provisions of s 43A and the [Guidelines], once that claim was made and finalised on the basis of the current impairment on the occasion it was assessed, the claim must be taken to have been made on the basis that any future deterioration or change of circumstances, whether anticipated or not, was disregarded or to be disregarded, and could not be the subject of a later claim for a new iteration of a ‘current impairment’. 166 As can be seen from the final paragraph, the claim comprised “a right to claim compensation with respect to any resultant permanent impairment of that body part”. That the injury to that body part may later deteriorate or require treatment did not affect the nature of the right. These matters were emphasised in the particular Chapters of the Guidelines to which Hannon DPJ referred:166 Permanent Impairment – Permanent 1.21 The meaning given to the word ‘permanent’ in various decisions of the courts includes: a) for a long and indeterminate time but not necessarily forever b) more likely than not to persist in the foreseeable future. Permanent impairment – maximum medical improvement 1.22 Assessments are only to be conducted when the assessor considers that the degree of permanent impairment of the worker is fully ascertainable. The permanent impairment will be fully ascertainable where the assessor considers the worker has attained maximum medical improvement. This is generally considered to occur when the worker’s condition has been medically stable for the previous three months and is likely to be stable for the foreseeable future, with or without further medical treatment (ie, further recovery or deterioration is not anticipated, but can include temporary fluctuations). … Future deterioration of a condition 1.24 If an assessor forms the opinion the worker’s condition is stable for the foreseeable future, but it is expected to deteriorate in the long term, the assessor should make no allowance for this deterioration, but note its likelihood in the evaluation report. 167 Judge Hannon considered that the conclusion reached in Anderson was correct,167 and, as he explained, it was a matter for the worker and the worker’s 166 Khan [2019] SAET 11, [20] (Hannon DPJ), referring to Chapters 1.21, 1.22 and 1.34 of the Guidelines. 167 Khan [2019] SAET 11, [31] (Hannon DPJ); Anderson [2018] SAET 70 (Hannon, Farrell and Dolphin DPJJ), addressed below. -- 47 of 65 -- [2025] SASCA 48 The Court 44 legal and medical advice as to whether any s 43 claim should be pressed at a particular time, notwithstanding that the risk of deterioration “could not be excluded or may even be expected”:168 … Ultimately, it was a matter for a worker, depending on his or her own advice as to the prognosis of the particular condition, and having regard to any other relevant matters, to decide whether or not to claim compensation for a permanent impairment at a particular time, despite that a non-compensable future deterioration could not be excluded or may even be expected. The alternative was to defer the claim to await developments and to undergo assessment at a later time. That may have been a difficult decision for many workers, but it was a decision which I consider had to be made in the context that the worker was entitled to make only one claim for permanent impairment with respect to the body part in question. 168 Judge Hannon concluded that there could be only “one claim to be made” and the knee replacement could not be made the subject of a further claim:169 … the intent of Part 4 Division 5 of the 1986 Act was to create a scheme for compensating each particular ‘compensable injury resulting in permanent impairment’, but to provide for compensation on only one occasion after the injury had stabilised. In this instance, as found by the trial judge, Mr Khan suffered from one event that resulted in injuries to more than one part of the body.170 The trial judge was correct to conclude that the consent order of 24 April 2013 compensated Mr Khan for the compensable injury which resulted in permanent impairment of the right knee. For the reasons given, there was one claim open to be made in that respect, and Mr Khan had no entitlement to make a further claim with respect to the right knee on the basis of subsequent events which undoubtedly led to a greater degree of impairment. 169 In case he was wrong about the proposition that there could only be one claim based on one assessment, Hannon DPJ considered the issue of the worker’s pre-existing condition, namely his arthritic knee.171 Hannon DPJ held that s 43A(9) required that there be a deduction having regard to authorities such as Department of Health and Ageing v Neilson,172 Alcoa Holdings Ltd v Lowthian,173 and Lingenberg v Gallichio,174 in a manner that was subsequently upheld by a majority of the Full Court in Paschalis v Return to Work Corporation of South Australia,175 and by the Court of Appeal in Return to Work Corporation of South Australia v Opie.176 Hannon DPJ held that, to do otherwise, based on a literal approach which ignored the fact of a pre-existing impairment due to the removal of the affected 168 Khan [2019] SAET 11, [29] (Hannon DPJ). 169 Khan [2019] SAET 11, [37] (Hannon DPJ). 170 Khan [2017] SAET 126, [39] (McCusker PJ). 171 Khan [2019] SAET 11, [48]-[64] (Hannon DPJ). 172 Department of Health and Ageing v Neilson [2017] SAET 136, [30] (Gilchrist, Hannon and Calligeros DPJJ). 173 Alcoa Holdings Ltd v Lowthian [2011] VSC 245 (Forrest J). 174 Lingenberg v Gallichio (2013) 40 VR 60, (Nettle and Neave JJA). 175 Paschalis v Return to Work Corporation of South Australia (2021) 140 SASR 77, [197]-[202] (Livesey and Bleby JJ) (Paschalis). 176 Return to Work Corporation of South Australia v Opie (2022) 140 SASR 304, [69] (Doyle, Livesey and Bleby JJA). -- 48 of 65 -- [2025] SASCA 48 The Court 45 body part and its replacement by a prosthesis, would be an approach “capable of producing arbitrary, capricious or irrational results”.177 170 In his reasons, Calligeros DPJ reviewed earlier decisions, before explaining that the 1986 Act allowed only one award and one assessment for the same impairment:178 While the 1986 Act does not expressly preclude a worker from seeking further lump sum compensation after an award, there is support in the language of the 1986 Act for the view that only one award of permanent impairment for a particular impairment is contemplated by the 1986 Act. Section 43(1) of the 1986 Act refers to a worker’s right to ‘compensation for non-economic loss by way of a lump sum’. The right is expressed in the singular. As the Deputy President in Baldacchino noted, the scheme of lump sum compensation under the 1986 Act does not contemplate, and makes no provision for, a series of assessments of the same impairment, or as Baldacchino and Anderson termed it, a series of interim assessments. One object of the 1986 Act is to ‘reduce litigation and adversarial contests to the greatest possible extent’.179 That object is not fostered by allowing repeated requests for a lump sum to be made for the same impairment. (Citations in original.) 171 Judge Calligeros went on to emphasise that the worker had not been required to have all of his impairments assessed at the same time:180 [The worker] was not required by the 1986 Act or by the [Guidelines] to have all his impairments resulting from injuries sustained on 17 January 2009 assessed at the same time. The Judge observed that Jorgensen is authority for that proposition.181 Under Part 4 Division 5 of the 1986 Act, multiple impairments arising from the same compensable event could be claimed individually and in such order as a worker chose. Even taking Cox J’s warning in Jorgensen about there being potential costs consequences of not claiming all impairments at the same time, undertaking surgery in the very near future was a good reason for Mr Khan to not resolve the right knee impairment in April 2013. Indeed, complying with ss 43 and 43A and the [Guidelines] required that the surgery take place and medical stability be achieved before the right knee impairment assessment be finalised: Kaye. On any reading of ss 43 and 43A and the [Guidelines], the consent orders should not have finalised Mr Khan’s right knee impairment when a [total knee replacement] was imminent. The issue was not traversed before the Judge. 172 On the basis that there was only one claim available, Calligeros DPJ agreed with the President that the new claim was barred by res judicata or cause of action 177 Khan [2019] SAET 11, [62] (Hannon DPJ), citing Lingenberg v Gallichio (2013) 40 VR 60, [30] (Nettle and Neave JJA). 178 Khan [2019] SAET 11, [90]-[92] (Calligeros DPJ). 179 Section 2(1)(f). 180 Khan [2019] SAET 11, [105] (Calligeros DPJ). 181 Khan [2017] SAET 126, [41] (McCusker PJ). -- 49 of 65 -- [2025] SASCA 48 The Court 46 estoppel.182 On the alternative question of the reduction for prior knee impairment, his Honour agreed with Hannon DPJ that a reduction was required:183 I reject Mr Warren’s submission that Alcoa Holdings and Lingenberg v Gallichio184 support Mr Khan’s position and agree with and adopt the reasons of Deputy President Judge Hannon above in that regard.185 (Citations in original.) 173 The dissent of Lieschke DP was addressed by the Chief Justice in the Full Court in the following way, giving emphasis to the meaning of “injury” in the context of a claim made pursuant to ss 43 and 43A of the 1986 Act:186 Lieschke DP dissented. Lieschke DP held that the 1986 Act provides for the assessment and compensation of particular impairments caused by a particular physiological condition and not for the impairment to a body part irrespective of the underlying pathology. Lieschke DP reasoned that Mr Khan had been compensated for the impairment resulting from the deterioration of his arthritic knee but had not been compensated for the impairment caused by the replacement of his knee with a prosthetic.187 … An ‘injury’ is defined by s 3 of the 1986 Act to mean any physical or mental injury, including any impairment of a limb or body part. An injury is therefore both a physiological change and the loss of function occasioned by it. However, plainly enough, the physiological change and the loss of impairment occasioned by it are not different injuries. Whether or not one aspect, or the other, of the meaning of injury is applicable in any provision of the 1986 Act will depend on the context in which the word ‘injury’ is used. In s 43(1) of the 1986 Act, the award for non-economic loss by way of a lump sum is for ‘a compensable injury resulting in permanent impairment’; the phrase is a compendious one referring to the permanent impairment resulting from a compensable injury. The approach of Lieschke DP is physiologically sound but requires a dissection of the concepts of injury and impairment which s 43(1) has bound together. The compensable injury was the deterioration, including by way of acceleration, of his pre-existing arthritic condition, even though the nature and degree of the associated compensable impairment may change depending on the way in which the injury is treated. 174 In the Full Court, the Chief Justice held that s 43 provided for a single award of lump sum compensation for the same compensable injury, essentially for the reasons given by the majority in the Full Bench, and he found it unnecessary to address the deduction issue concerning the worker’s prior impairment due to his arthritic knee.188 182 Khan [2019] SAET 11, [114]-[115] (Calligeros DPJ). 183 Khan [2019] SAET 11, [128] (Calligeros DPJ). 184 [2013] VSCA 143. 185 Khan [2019] SAET 11, [51]-[63] (Hannon DPJ). 186 Khan [2019] SASCFC 150, [12], [18] (Kourakis CJ, with whom Peek and Doyle JJ agreed). 187 Khan [2019] SAET 11, [139]-[141] (Lieschke DP). 188 Khan [2019] SASCFC 150, [14] (Kourakis CJ, with whom Peek and Doyle JJ agreed). -- 50 of 65 -- [2025] SASCA 48 The Court 47 175 In explaining his reasons, the Chief Justice placed emphasis on s 43(7) of the 1986 Act, and the difficulties with double compensation that may arise if successive claims were recognised:189 Section 43(7) of the 1986 Act is significant. It provides for a reduction in the lump sum when the compensable injury consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of a ‘prior compensable injury’ which has been previously compensated by a lump sum. Section 43(7) does not apply to the autogenetic deterioration of a single injury. It applies only where the compensable injury for which a lump sum compensation pursuant to s 43 is sought is a secondary injury, and the primary injury had been compensated by a lump sum payment. Plainly then, the legislation contemplates, and has made provision to guard against, double compensation in those circumstances. It is significant that no such provision has been made with respect to successive awards for increasing impairments resulting from the pathogenesis of the same compensable injury. In particular, there are no provisions for the prevention of double compensation if successive awards were to be made as the degree of the same impairment increased. I acknowledge that it might be said that it goes without saying that any subsequent entitlement is only for the additional whole person impairment which the worker has come to suffer. However, there is no textual basis for that approach. Indeed, the text suggests the converse. The entitlement conferred by s 43(1) is for ‘a compensable injury resulting in permanent impairment’. There is, on Mr Khan’s premise, only a single injury. It was the injury caused in 2009. When Mr Khan obtained his first award of lump sum compensation, it was, in part, for the compensable right knee injury resulting in a permanent impairment. The consent determination was premised on a knee impairment of nine per cent. On the application for a further payment pursuant to s 43(1) of the 1986 Act, Mr Khan claimed that he was suffering the same compensable right knee injury, but that it now resulted in a permanent impairment, as assessed by Dr D’Onise, of 30 per cent. It is difficult to see how the text of s 43 can be read so as to differentiate between the first and subsequent impairments such that it mandates a payment based on the entirety of the impairment for the first claim, but only a payment based on the incremental increase for subsequent claims. 176 As important as these difficulties with double compensation were, the central impediment to the worker’s new claim was s 43A(8) of the 1986 Act:190 Section 43A(8) of the 1986 Act stands squarely in the way of the construction urged on Mr Khan’s behalf. Section 43A(8)(a) serves an obvious and important purpose if only a single award can be made for the same compensable injury. It ensures that the single award is not made until the injury has stabilised, thereby enhancing the prospect that the award made most closely approximates the degree of permanent impairment which the worker is likely to suffer. True it is that that approach may well mean that an award of lump sum compensation could not be made for some conditions until after a lengthy period of recovery, unless the parties consented to an award, presumably one which factored in a discount for the early receipt of what was most likely to be the future award. However, the policy reasons for providing a single lump sum are readily apparent. The making of successive awards as the impairment deteriorates creates administrative burdens and uncertainty in the management of a scheme like that established by the 1986 Act. On the other hand, there would be little purpose and utility in the enactment of subparagraph (a) of s 43A(8) of the 1986 Act if successive awards could be made. All that 189 Khan [2019] SASCFC 150, [21]-[22] (Kourakis CJ, with whom Peek and Doyle JJ agreed). 190 Khan [2019] SASCFC 150, [26]-[27] (Kourakis CJ, with whom Peek and Doyle JJ agreed). -- 51 of 65 -- [2025] SASCA 48 The Court 48 would be required on Mr Khan’s construction is that there be a permanent impairment, and that the award actually made on each successive claim not exceed that degree of impairment which is likely to be permanent. 177 More particularly, the Chief Justice highlighted the difficulties presented by s 43A(8)(b) of the 1986 Act, which required that the WPI assessment “be based on the worker's current impairment as at the date of assessment, including any changes in the signs and symptoms following any medical or surgical treatment” for the work injury:191 Subparagraph (b) of s 43A(8) also tells strongly against Mr Khan’s proposed construction. If the assessment must be made on the worker’s current impairment, then the SAET could not factor in any possible improvement because of future treatment. That provision is an important safeguard for workers, which supplements the requirement for permanency and stability in subparagraph (a), if only one award can be made. However, if a number of successive awards can be made, it could lead to a windfall to an injured worker who has embarked on a process of rehabilitation which leads to further recovery. On the first application, an award might be made on a degree of impairment which will be higher, on some occasions considerably higher, than the permanent or long-term impairment. I acknowledge that the SAET might adjourn an application pending treatment and recovery, but again it is telling that Parliament has not expressly conferred that discretion and has not expressly prescribed considerations to guide that discretion. 178 The appeal was dismissed. 179 As has been seen in this case, the worker’s case at trial and on appeal essentially accepted the one claim, one assessment principle, but depended on drawing a distinction between the bursitis addressed in Dr Wright’s assessment, and the left hip arthritis addressed in Dr D’Onise’s assessment. 180 Why the distinction on which the worker’s case depends cannot be drawn is in part explained in the Full Bench decisions which the worker attacked on this appeal, together with the potential application of cl 44 of Schedule 9 and, reg 5 of the Transitional Regulations. The one claim, one assessment principle must be applied in this case having regard to the claims in fact made by the worker. The worker’s claims have been for left hip injury and then, much later, for her so-called “surgical injury”. The suggestion that the worker made a late, separate claim for a left hip arthritis injury is addressed later in these reasons. 181 In that context, it can be seen that the primary judge erred. Whilst his Honour perceptively recognised some tension between the approach he took in Cepon and the decision in Khan, the effect of his decision was to fail to recognise that the claim for left hip impairment necessarily included all left hip pathology. Even if that was not so, his Honour conflated a claim for left hip arthritis with the claim that was made for a “surgical injury”.192 The rejection of a claim for surgical injury is the subject of the later decision of the Full Bench in Cepon. 191 Khan [2019] SASCFC 150, [28] (Kourakis CJ, with whom Peek and Doyle JJ agreed). 192 Primary judge, [104]-[105]. -- 52 of 65 -- [2025] SASCA 48 The Court 49 182 Similarly, the Full Bench erred in drawing the same distinction. Once it is recognised that the worker had made a claim for left hip injury and was compensated for that and then, in 2020, deliberately made no further claim for left hip injury, whether or not it was described as “the separate injury of acceleration of degenerative changes to the left hip joint”,193 there is no basis for distinguishing Khan. 183 The 1986 Act required that attention be given to the claim made by the worker for the compensable injury sustained by the worker, and that is not to be confused with the various ways in which medical examiners may decide to assess permanent impairment under the Guidelines and AMA5. As the High Court explained in Canute v Comcare, concerning the provisions of the Commonwealth legislation which provided compensation where an injury to an employee resulted in a permanent impairment,194 the assessment methodologies must be approached through the prism of what the statute recognises as an “injury” which is made the subject of a claim:195 However, it is important to remember that recourse to the criteria and methodologies set out in the Guide is only necessary once the key statutory criterion of the occurrence of “an injury” (which resulted in at least one permanent impairment) has been fulfilled. The Guide is to be approached through the prism of each “injury”. 184 As has been recognised many times, whilst it is permissible to have regard to the Act, the Guidelines and AMA5 so as to “ascertain the nature of the scheme”, particularly where they “establish an interdependent regime”, there are clear limits to that process.196 In particular, “it is not appropriate to use delegated legislation for the purpose of construing the enactment under which the delegated legislation was made”.197 In the event of inconsistency, the statute prevails.198 185 It is appropriate to address the decision in Anderson.199 In that case, in 2009 the worker injured her left hip and groin whilst working as a cleaner. Her claims for these injuries were accepted. Over time, the worker was diagnosed with various conditions as a result of her work injury, including an iliopsoas bursa, left trochanteric bursitis, and degenerative change of the left hip joint.200 186 In 2011, there was a determination that the worker had a lump sum entitlement under s 43 for “left trochanteric bursitis” based on a 9% WPI of the left hip. The worker received a lump sum payment of $16,720 under s 43 of the 193 Full Bench, [101]-[102]. 194 Safety, Rehabilitation and Compensation Act 1988 (Cth), s 24. 195 Canute v Comcare (2006) 226 CLR 535, [14] (Gummow ACJ, Kirby, Callinan, Heydon and Crennan JJ). 196 Marrone (2013) 116 SASR 501, [67]-[70] (White J, with whom Sulan J agreed). 197 Marrone (2013) 116 SASR 501, [68] (White J, with whom Sulan J agreed). 198 Paschalis (2021) 140 SASR 77 [212] (Livesey and Bleby JJ), citing HJ Heinz Company Australia Pty Ltd v Kotzman (2009) 31 VAR 206, [24]-[28] (Kyrou J) and Mountain Pine Furniture Pty Ltd v Taylor (2007) 16 VR 659, [33] (Nettle JA, with whom Vincent and Ashley JJA agreed). 199 Anderson [2018] SAET 70 (Hannon, Farrell and Dolphin DPJJ). 200 Anderson [2018] SAET 70, [2] (Hannon, Farrell and Dolphin DPJJ). -- 53 of 65 -- [2025] SASCA 48 The Court 50 1986 Act.201 The worker continued to experience left hip and groin pain and ongoing degeneration of the left hip joint. 187 In 2012 the worker underwent a total left hip joint replacement. The Corporation accepted that the need for this surgery was a consequence of the compensable injury.202 In 2015, the worker applied for further compensation with respect to the left hip under sub-reg 5(4) of the Transitional Regulations. The worker relied on a 21% WPI. The Corporation rejected the claim because the worker’s hip joint injury had been previously assessed and compensated.203 188 Following a trial, a Deputy President found that the worker suffered bursa injuries separate from any injury to the left hip capsule.204 Because only the chronic bursitis was assessed under s 43 before 1 July 2015, under reg 5 of the Transitional Regulations the worker claimed to be entitled to further compensation for the 21% WPI and the Deputy President upheld that claim.205 The Corporation appealed. The Full Bench described the question for decision as follows:206 The question in this appeal is whether a worker who suffered injury and received a lump sum payment for non-economic loss under s 43 of the [1986 Act] for a condition described as left trochanteric bursitis has an entitlement to an award of further lump sum compensation for non-economic loss with respect to a total left hip joint replacement. 189 The Full Bench in Anderson observed that the primary judge had rejected the submission that the worker had been compensated for her left hip injury, instead relying on the way the issue was addressed in AMA5:207 The Deputy President rejected the appellant’s contention that its characterisation of a general hip injury was supported by the approach taken to assessments in AMA5.208 The Deputy President observed that, whilst AMA5 did refer to hip injury as such, it distinguished between injuries that caused hip motion impairment, ankylosis, loss of the natural hip joint and replacement by prosthesis, and other injuries. He found that the appellant’s submission that there was one hip injury only was contrary to its adoption of the medical evidence as evidenced by the determination of 1 July 2011 that there was a permanent impairment with respect to “left trochanteric bursitis”. (Citations in original.) 201 Anderson [2018] SAET 70, [3] (Hannon, Farrell and Dolphin DPJJ). 202 Anderson [2018] SAET 70, [4] (Hannon, Farrell and Dolphin DPJJ). 203 Anderson [2018] SAET 70, [5] (Hannon, Farrell and Dolphin DPJJ). 204 Anderson [2017] SAET 37, [31] (Lieschke DP). Later, the primary judge found that the 21% WPI for the total hip replacement should be combined with the 9% WPI for trochanteric bursitis to produce a combined WPI of 28%, giving rise to an entitlement to payment of $69,695. His Honour rejected the contention that this sum should be reduced by the earlier payment of $16,720; Anderson [2017] SAET 67. 205 Anderson [2018] SAET 70, [6] (Hannon, Farrell and Dolphin DPJJ). 206 Anderson [2018] SAET 70, [1] (Hannon, Farrell and Dolphin DPJJ). 207 Anderson [2018] SAET 70, [12] (Hannon, Farrell and Dolphin DPJJ). 208 Guides to the Evaluation of Permanent Impairment (American Medical Association, 5th ed, 2000). -- 54 of 65 -- [2025] SASCA 48 The Court 51 190 After an extensive review of the evidence, the Full Bench found that the method of assessment used by the medical examiner did not necessarily determine what injury was assessed:209 There can be no doubt that the degenerative condition of the left hip deteriorated significantly after the 2011 assessment to the extent that a total hip replacement was recommended and undertaken. However that fact, and the fact that there was no impairment value attributed to any degenerative condition of the left hip as a result of the 2011 assessment, does not mean that the left hip injury resulting in degeneration was not assessed in 2011. In our view, it is a distraction to focus on either the description of injury as first given in the claim form (complex iliopsoas bursa), or as given in the determination of permanent impairment (left trochanteric bursitis). The method of assessment does not necessarily determine what injury or injuries were assessed. Ms Anderson was correct to contend that assessment of impairment resulting from bursitis may properly entail consideration of impaired range of motion of the hip. However, of itself, the use of that measure does not mean that the assessment was confined to that condition, or that it did not include impairment resulting from the hip injury. 191 The Full Bench found that the primary judge made an error of law in failing to find that there was an assessment in 2011 of the worker’s left hip injury resulting in degeneration.210 The Full Bench then addressed the effect of the Transitional Regulations, finding that it was an error to find that the earlier determination did not cover all aspects of the non-economic loss suffered by the worker:211 Although he did not expressly say so, it is implicit in the reasons of the Deputy President that he took two steps in finding that reg 5(3) had been satisfied. First, that there was an existing injury affecting more than one body part. Second, that the determination of 1 July 2011 made under s 43 of the [1986 Act] which gave rise to an entitlement to payment of compensation with respect to chronic bursitis, had not covered all aspects of the non-economic loss suffered by [the worker], as it did not encompass any loss with respect to the left hip. A question arises as to whether the Deputy President was correct to ultimately conclude that the condition in reg 5(3)(b) was met, even though he erred in law in finding that the left hip injury was not also the subject of assessment in 2011. That is, could it be found that, as there had been a determination on 1 July 2011 of 9% WPI with respect to trochanteric bursitis that gave rise to an entitlement to compensation on that basis, the determination did not cover all aspects of the non-economic loss suffered by [the worker]? We do not consider that reg 5(3)(b) can be interpreted to allow for this outcome. It would allow the description of the condition with respect to which the determination was made to obscure what was encompassed by the assessment upon which the determination was based. The assessment of 6 June 2011, leading to the determination of 1 July 2011, encompassed any impairment which existed in relation to each body part affected by what the Deputy President ultimately came to describe as the original work injury. The 209 Anderson [2018] SAET 70, [55]-[56] (Hannon, Farrell and Dolphin DPJJ). 210 Anderson [2018] SAET 70, [59] (Hannon, Farrell and Dolphin DPJJ). 211 Anderson [2018] SAET 70, [72]-[74] (Hannon, Farrell and Dolphin DPJJ). -- 55 of 65 -- [2025] SASCA 48 The Court 52 assessment encompassed any non-economic loss then suffered by Ms Anderson with respect to left hip arthritis. 192 It may be doubted whether, with respect, two of the findings made by the Full Bench really mattered. The first was that arthritis had been assessed as part of the earlier assessment of impairment, in circumstances where arthritis attracted no impairment rating when assessed as part of the range of motion methodology.212 The second was that the earlier determination did not cover all aspects of the non-economic loss suffered by the worker, in circumstances where no further claim for left hip impairment was available under the Transitional Regulations because the original work injury had not affected more than one part of the body beyond the left hip. 193 Whatever the discrete diagnoses available, they all affected the same part of the worker’s body for which she had claimed compensation, being the left hip. The Full Bench applied the one claim, one assessment principle:213 Whilst there are factual and legal differences between this matter and Baldacchino, the principle which emerges from that decision applies in this case. In Baldacchino, he was assessed and found to be suffering from a permanent disability for which he was duly compensated. Later, the worker underwent an operation and was assessed to have a greater level of disability. The Tribunal rejected the proposition that this was a material development that entitled him to challenge the earlier assessment. It was found that the s 43 process, as it then applied, did not contemplate a regime allowing for interim assessments which reflected changes in a worker’s level of disability. In our view, the same principle applies, with even more force, where there has been an assessment of an impairment under s 43 of the [1986 Act] on the basis of maximum medical improvement by reference to AMA5 and the Guidelines. The fact that there were found to be three injuries arising from the same trauma makes no difference given the critical fact that the left hip arthritis was one of the rateable impairments the subject of the 2011 assessment. 194 The essence of the ruling by the Full Bench was that the worker’s left hip had been assessed and another claim was being made for the left hip. The fact that one aspect of the left hip condition deteriorated and required surgery did not matter, because there had already been one claim and one assessment for the worker’s left hip injury. 195 The Full Bench went on to find that, if there had been scope to make a further claim, the earlier compensation payment had to be deducted.214 The Corporation’s appeal was allowed. 196 The approach which must be taken to the assessment of impairment in the case of surgical treatment – and so-called “surgical injuries” – was clarified by the Full Bench in Cepon.215 Whilst that case concerned ss 22 and 58 of the 2014 Act, 212 Anderson [2018] SAET 70, [57]-[59] (Hannon, Farrell and Dolphin DPJJ). 213 Anderson [2018] SAET 70, [76]-[77] (Hannon, Farrell and Dolphin DPJJ). 214 Anderson [2018] SAET 70, [86]-[87] (Hannon, Farrell and Dolphin DPJJ). 215 Cepon [2022] SAET 32 (Calligeros DPJ, with whom Kelly DPJ and Cole DP agreed). -- 56 of 65 -- [2025] SASCA 48 The Court 53 the original work injury occurred during the operation of the 1986 Act, and what the Full Bench said about the assessment of permanent impairment applied equally to the approach required under the 1986 Act. Indeed, Khan was cited in support of the approach taken to the 2014 Act. 197 In Cepon the worker sustained a work injury to his left knee, comprising a rupture to his anterior cruciate ligament.216 Between 2010 and 2017 two surgeons undertook a number of operations, endeavouring to repair and reconstruct the worker’s anterior cruciate ligament. Because no WPI assessment was made under the 1986 Act, assessments were made under s 22 of the 2014 Act.217 Whilst the worker was entitled to a lump sum for non-economic loss, that was a claim recognised under the 1986 Act, whereas there was no lump sum economic loss entitlement recognised under that Act. 198 The issue was whether the worker had become entitled to lump sum compensation for economic loss under s 56 of the 2014 Act, because each surgery undertaken after 1 July 2015 comprised a “surgical injury” which was able to be assessed for whole person impairment. The primary judge held that the claim was barred by cl 43 of Schedule 9.218 The worker appealed. 199 The Full Bench dismissed the appeal but for different reasons, finding that the conclusion reached by the primary judge regarding cl 43 was wrong, and that the 2016 and 2017 surgeries created no separate lump sum entitlement.219 Calligeros DPJ, with whom Kelly DPJ and Cole DP agreed, commenced with the distinction between injury and impairment, but gave emphasis to the operation of s 22(7)(b) of the 2014 Act, which is relevantly the same as s 43A(8)(b) of the 1986 Act:220 The [2014 Act] draws a distinction between injury and impairment, as Stanley J explained in Preedy:221 ... “Impairments” and “injury” are related but distinct concepts. “Impairment” is a condition which results from an “injury” … Sections 56(1) and 58(1) provide that if a worker suffers a work injury which gives rise to permanent impairment, they are entitled to lump sums for economic and non-economic loss. However, s 22(7)(b) provides that the degree of WPI assessed in a permanent impairment assessment (PIA) ncludes [sic] any changes in signs and symptoms following medical or surgical treatment “in respect of the injury”. In my view, s 22(7)(b) provides that surgery is to be treated as part of the injury for permanent impairment purposes. To the 216 Cepon [2020] SAET 195, [8] (Gilchrist DPJ). 217 Cepon [2020] SAET 195, [33], [66]-[68] (Gilchrist DPJ). 218 Cepon [2020] SAET 195, [107] (Gilchrist DPJ). 219 Cepon [2022] SAET 32, [42]-[45] (Calligeros DPJ, with whom Kelly DPJ and Cole DP agreed). 220 Cepon [2022] SAET 32, [46]-[47] (Calligeros DPJ, with whom Kelly DPJ and Cole DP agreed). 221 Preedy [2018] SASCFC 56, [51] (Stanley J, with whom Kourakis CJ and Parker J agreed). -- 57 of 65 -- [2025] SASCA 48 The Court 54 extent that there is conflict between ss 56(1) and 58(1), Preedy makes it clear that s 22 is the dominant provision of the three.222 200 Judge Calligeros went on to explain why the assessment of an impairment did not demonstrate the existence of an injury, and he drew an important distinction between the approach taken in the case of weekly payments and medical expenses:223 While certain surgical procedures give rise to a specific degree of permanent impairment under the [Independent Assessment Guidelines] or AMA5, it does not follow that such procedures constitute a further or separate injury for permanent impairment purposes. In AMA5, North American medical specialists reached agreement about the degree of WPI to be assigned to a large number and wide range of injuries and conditions. Under the IAG and AMA5, a hip or knee replacement may improve function, but may result in a higher degree of WPI that was present prior to surgery.224 … The surgery in 2016 and 2017 gave rise to further entitlements to weekly payments and medical expenses. However, s 22(7)(b) provides that the degree of permanent impairment resulting from an injury is based upon the worker’s current impairment, “including any changes in the signs and symptoms following any medical or surgical treatment”. Section 22(7)(b), and the methodology of AMA5 and the [Independent Assessment Guidelines] generally, suggest that a [permanent impairment assessment] should wait until surgical treatment has finished. Section 22(7)(b) treats the surgical and medical treatment of a work injury as being part of the injury which is assessed. 201 Judge Calligeros then referred to the way the Full Bench in Khan had taken the same approach to s 43A(8)(b), which was upheld by the Full Court.225 202 After explaining that ss 56(8) and 58(9) permit only one claim for lump sum compensation for injuries arising from the same trauma, Calligeros DPJ concluded that “a worker who has a [permanent impairment assessment] before having surgery is not entitled to a further [permanent impairment assessment] by reason of having surgery”.226 To do otherwise would be to treat surgery in a manner inconsistent with s 22(7)(b) and, it may be interpolated, s 43A(8)(b).227 That approach is also consistent with s 7(6), s 22(10) and s 40 of the 2014 Act. 203 Judge Calligeros concluded that, even though one of the later surgeries involved a tibial osteotomy, the “restorative effect of the surgery” emphasised why it “should not be treated as an injury for permanent impairment purposes”.228 222 Preedy (2018) 131 SASR 86, [60] (Stanley J, with whom Kourakis CJ and Parker J agreed); Summerfield (2021) 138 SASR 175, [14] (Stanley J, with whom Kourakis CJ and Doyle J agreed). 223 Cepon [2022] SAET 32, [48], [50] (Calligeros DPJ, with whom Kelly DPJ and Cole DP agreed). 224 For example, Paterson v Return to Work Corporation of South Australia [2021] SAET 23 [48]. 225 Cepon [2022] SAET 32, [51]-[52] (Calligeros DPJ, with whom Kelly DPJ and Cole DP agreed). 226 Cepon [2022] SAET 32, [54] (Calligeros DPJ, with whom Kelly DPJ and Cole DP agreed). 227 Cepon [2022] SAET 32, [54] (Calligeros DPJ, with whom Kelly DPJ and Cole DP agreed). 228 Cepon [2022] SAET 32, [64] (Calligeros DPJ, with whom Kelly DPJ and Cole DP agreed). -- 58 of 65 -- [2025] SASCA 48 The Court 55 204 This approach is, respectfully, correct. It demonstrates why the one claim, one assessment principle usually requires that the assessment of whole person impairment be deferred until maximum medical improvement is achieved following surgery but, where the worker does not do that, Khan shows that no further assessment can be made for the work-related injury. The position is otherwise if the surgery is associated with negligence or other complications sufficient to permit the conclusion that a new injury has been sustained by the worker. 205 Again, it can be seen that the Full Bench in this matter erred in law. Whether surgery was performed before or after the commencement of the 2014 Act did not affect the operation of the one claim, one assessment principle. More importantly, the Full Bench failed to heed the ruling in Cepon that the consequences of restorative surgery cannot be treated as a stand-alone injury for the purposes of assessing permanent impairment. These matters were not affected by the construction of s 30(3)(e) of the 1986 Act where no separately compensable injury was sustained by the worker as the result of surgery.229 Cepon should have been followed.230 206 The finding by the Full Bench on cl 44 of Schedule 9 to the 2014 Act erroneously treated the surgical injury as a stand-alone injury.231 207 Even if one was prepared to draw the distinctions drawn by the primary judge and the Full Bench in this case – that is, between the bursitis addressed in Dr Wright’s assessment, and the left hip arthritis addressed in Dr D’Onise’s assessment – it was necessary to confront the application of cl 44 of Schedule 9 to the 2014 Act and reg 5 of the Transitional Regulations. 208 Whether a further claim assessable under s 22 was permitted by cl 44 of Schedule 9 depended on whether that would be an assessment made in relation to “the same injury (or any other injury arising from the same trauma)”. 209 Once the injury claimed by the worker is recognised as being for her left hip injury, it is clear that no further assessment was permitted for the same injury. 210 In fact, the concern that no further claim for arthritis may have been available may well have informed the forensic decision taken to the way in which the new “surgical injury” claim was made in March 2020. 211 That may explain why the worker’s solicitors articulated the “surgical injury” as a separate injury in connection with the claim made in March 2020, intending to avoid the application of cl 44 of Schedule 9 to the 2014 Act. 229 Cf Full Bench, [97]. 230 See Pond v WorkCover/Allianz Australia (Wunda Joinery) [2001] SAWCT 69, [13]-[14] (Jennings PJ, Gilchrist DPJ and McCouaig DP); cf Department for Child Protection (SA) v Morris [2022] SASCA 131, [117] (Livesey P, Doyle and Bleby JJA). 231 Full Bench, [95]. -- 59 of 65 -- [2025] SASCA 48 The Court 56 212 The worker’s solicitors may also have been concerned that the evidence of Dr Sood demonstrated that bursitis and arthritis both developed over the same period as a result of the same combination of the worker’s back injury, deconditioning and altered gait and, on the approach taken by the Full Court to “the same trauma” test in Marrone, both might have been thought to have arisen from “the same injury”, if not also from the “same event or series of events”.232 213 Similarly, once the injury was recognised as the left hip injury it may have been difficult to see how the worker could have satisfied the requirements of reg 5 of the Transitional Regulations. That is because the left hip was the only “body part” involved and in any event, just as in Anderson, increased symptoms leading to surgery do not demonstrate that an earlier determination did not cover all aspects of the non-economic loss suffered by the worker. 214 Finally, if in 2020 a new claim had been made for a left hip arthritis injury, to be assessed under s 22 of the 2014 Act by virtue of the transitional provisions, it may also have been necessary to confront the application and effect of s 7(6), and whether that provision was not merely concerned with compensability but with attribution, limiting the worker’s capacity to elect and requiring that the surgery be attributed to the worker’s original work injury.233 Conclusions on appeal grounds 2 and 4 215 It is clear from the findings made by the primary judge that the worker was compensated for her left hip injury following the 2014 determination of left hip impairment, and it was for that injury that medical expenses were approved and for which Dr Sood conducted left hip replacement surgery in 2015. 216 There was no claim made or foreshadowed for degenerative arthritis of the left hip in March 2020. The decisions in Anderson and Cepon show that any further claim of the kind made in 2020 was foreclosed by Khan and the one claim, one assessment principle, and there was no scope for a “surgical injury” as the effect of the surgery was ameliorative, and the worker’s pain and function were considerably improved. Indeed, and as is shown by the facts of Anderson, it did not matter whether the earlier compensation payment reflected any particular compensation component for arthritis.234 217 In that setting the identification of a separate “surgical injury” involved an error of law. These appeal grounds should be upheld. It is necessary to set aside the orders of the Full Bench and the primary judge. 232 Marrone (2013) 116 SASR 501, [21] (Kourakis CJ), [86] (White J, with whom Sulan J agreed); Mitchell (2019) 135 SASR 315, [24]-[30] and [58] (Stanley J, with whom Kourakis CJ and Hinton J agreed). 233 Cf, the cases on a worker’s right to elect to make a claim, choosing between different employers or different events, such as Wardleworth v Green (1996) 66 SASR 421, 431-436 Doyle CJ, with whom Bollen and Nyland JJ agreed); Lovatt v WorkCover/Employers Mutual Ltd (Virginia Nursey Pty Ltd) [2008] SAWCT 31 (McCouaig DP); and WorkCover Corporation/Employers Mutual Ltd (Virginia Nursey Pty Ltd) v Lovatt [2008] SAWCT 61 (Jennings PJ, McCusker and Gilchrist DPJJ). 234 Cf, primary judge, [105]. -- 60 of 65 -- [2025] SASCA 48 The Court 57 Appeal ground 1: ameliorative surgery does not produce an injury 218 As can be seen from the discussion of the decisions in Khan and Cepon, the surgical treatment of a work injury which is ameliorative of a worker’s condition does not produce any further entitlement to a further impairment assessment by reason of having had surgery. 219 In the ordinary case, that is because impairment from a work injury is only assessed after surgery in accordance with s 43A(8)(b) of the 1986 Act or s 22(7)(b) of the 2014 Act, and that assessment will reflect “any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury”. Where the worker decides to proceed to resolve a claim notwithstanding that any risk of deterioration “could not be excluded or may even be expected”,235 the making of a further claim following surgery is barred by the one claim, one assessment principle. 220 Appeal ground 1 should be upheld. Appeal ground 3: the 2020 orders precluded any further left hip claim 221 As has been seen from the decision of King CJ in Salmon St Ltd v Jorgensen, where the worker resolves the single cause of action available for a particular injury, the claim concerning that injury or impairment merges in the determination, and subsequent proceedings for the same injury or impairment are barred as res judicata.236 In Tomlinson v Ramsey Food Processing Pty Limited the High Court described the operation of “cause of action estoppel”:237 Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. 222 The Full Bench in this case referred to cause of action estoppel, but cited passages from Tomlinson and Blair v Curran addressing issue estoppel.238 223 In Stephenson,239 and Nemesis the Full Court addressed arguments about the extent to which claims for compensation may be resolved by consent:240 In summary, in Stephenson, this Court held that a consent order pursuant to s 88DA of the [1986 Act] may validly and effectively determine that a worker does not have an entitlement to lump sum compensation pursuant to s 43 of the [1986 Act] for any existing impairment by way of compromise of a claim or claims for compensation as at the date of 235 Khan [2019] SAET 11, [29] (Hannon DPJ). 236 Salmon St Ltd v Jorgensen (1991) 56 SASR 158, 161-162 (King CJ, with whom Cox and Bollen JJ agreed). 237 Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507, [22] (French CJ, Bell, Gageler and Keane JJ) (Tomlinson). 238 Full Bench, [89]-[91], citing Blair v Curran (1939) 62 CLR 464, 531-532 (Dixon J). 239 Stephenson (2019) 134 SASR 141. 240 Nemesis [2020] SASCFC 22, [46] (Kourakis CJ, with whom Nicholson and Parker JJ agreed). -- 61 of 65 -- [2025] SASCA 48 The Court 58 the order, whatever may be the case in fact, but it cannot exclude the operation of the [1986 Act] on permanent impairments which the worker subsequently contracts. Such an order may be made either standing alone or in conjunction with an award of lump sum compensation. In Stephenson, the finding was that Mr Stephenson was not suffering any impairment at all. For that reason, the issue of permanency was not expressly referred to. However, a consent award can only be made if it is agreed that the impairment is permanent. A consent order that the worker is not entitled to lump sum compensation may be made on the basis that he or she is not relevantly impaired, or that if impaired, the impairment is not permanent, or that the worker does not suffer specified or any compensable injuries at all. 224 Given the impairment assessments made by Dr D’Onise and Dr Wright, there could have been no issue about the permanency of any impairment in the left hip in the period 2013 to 2014, before the 2014 determination and regardless whether, as it turned out, those impairments worsened and later required surgery. 225 There is here no issue about the scope of any underlying agreement between the parties and whether it differed from the terms of their consent order.241 226 In the absence of all underlying correspondence, or other evidence of dealings between the parties, the nature of what was agreed between them, whether at the time of the 2014 determination, or at the times of the 2017 determination and the consent orders in 2020, can only be determined by reference to the orders made by the Tribunal on 19 February 2020 and what must have been known to both parties in February 2020.242 227 Those orders referred to and confirmed the 2017 determination. 228 The 2017 determination referred to the worker’s claim for a “surgical injury” following the 2015 left total hip replacement, and the rejection of it on the basis that the worker had “no further entitlement to lump sum compensation for your left hip impairment”.243 Reference was also made to the fact compensation for non-economic loss “has already been determined … in respect of an existing injury and therefore no further assessment is required for your left hip injury”.244 229 It seems clear that the consent orders were entered on the basis that the worker’s left hip injury claim had been resolved, there could be no further claim, 241 Including as to whether any permissible settlement agreement may be broader than any permissible Tribunal order, see Mitsubishi v Kowalski [2019] SASCFC 95, [5]-[6], [69] (Kourakis CJ, Peek and Parker JJ) (regarding the reach of s 119 of the 1986 Act, the equivalent to which is now s 191 of the 2014 Act, regarding “contracting out”). 242 Stephenson (2019) 134 SASR 141, [47]-[54] (Kourakis CJ, with whom Nicholson and Parker JJ agreed). In Wright v New South Wales [2024] NSWCA 77, [76]-[81] (Stern JA, with whom Gleeson and Mitchelmore JJA agreed), the New South Wales Court of Appeal construed a determination by reference to the ambit of the dispute between the parties as revealed by, amongst other matters, an “Application to Resolve Dispute”. 243 AB 155-156. 244 AB 156. -- 62 of 65 -- [2025] SASCA 48 The Court 59 and the parties were agreed that the 2017 determination to that effect should be confirmed. 230 The primary judge rejected the preclusion argument on the basis that the 2014 determination and compensation did not include anything for arthritis. As has been seen, that was not the claim being made in March 2020. That claim assumed that the left hip injury claim had been resolved. The primary judge erred in failing to recognise that the consent orders reflected the resolution of the left hip claim. The Full Bench made the error of confusing what was claimed and resolved – the left hip injury claim – with the references made in the 2017 determination to the method of assessment used by the medical examiner to arrive at a whole person impairment rating. 231 At the hearing of this appeal, a different approach was taken by the worker. This was in a context where the worker’s written appeal material did not suggest that there had been a claim made for left hip arthritis, and where there was no cross-appeal or notice of alternative contention from the worker. A cross-appeal would have recognised the need for different orders, a notice of contention would have defended the orders made for differing reasons. 232 Apart from the contentions made on the question of leave to appeal, set out earlier, the worker made a fleeting reference in her written material to not previously receiving lump sum compensation for the hip replacement on 26 May 2015 “nor the injury which caused the need for the replacement surgery”.245 233 However in the course of oral argument, attention was given to the worker’s pre-trial “Statement of Issues and Contentions” dated 1 April 2021, to the compensating authority’s “Amended Statement of Issues and Contentions” dated 8 April 2021, and to the final address delivered on behalf of the worker on 13 April 2021, to support a submission that a late claim had been made for left hip arthritis at the trial, that this was separate to the claim for a “surgical injury”, and that there had been a failure by the primary judge and the Full Bench to properly address it. 234 The worker’s Statement of Issues and Contentions referred to a distinct “osteoarthritic aggravation injury” which did not arise from the same trauma as the lumbar spine injury or the trochanteric bursitis injury. It was contended that this had not been diagnosed or assessed by Dr Wright and the worker was “not precluded from lump sum compensation” for it.246 No reference was made to the diagnosis made by Dr D’Onise. 245 Written submissions of the respondent, [56]. 246 “Statement of Issues and Contentions” dated 1 April 2021, [33]-[34]. -- 63 of 65 -- [2025] SASCA 48 The Court 60 235 In the compensating authority’s “Amended Statement of Issues and Contentions” the word “arthritis” does not appear. No claim or assessment for arthritis was countenanced. 236 During closing address before the primary judge, the then senior counsel for the worker submitted that the worker had not been diagnosed with an arthritic hip, “it’s not like Anderson where there was an assessment of an arthritic hip injury but it was at zero”.247 Later, counsel submitted that the worker had never “had an assessment … of the total left hip replacement, or, indeed, [of] the arthritic injury, the symptomatic arthritic degeneration that led to it”.248 237 Most of counsel’s address was taken up with articulating a claim under the 2014 Act in connection with the consequences of the hip replacement and the need for that to be assessed under s 22.249 Counsel sought to avoid the Transitional Regulations and “nice questions as to … a different body [part]”.250 Whilst a submission was made that there was a claim under the 2014 Act with two distinct injuries, an arthritic degeneration and “the hip surgery itself as an injury”,251 the first way of putting the case did not really feature in the address. Most of the address was taken up with the proposition that there was a “surgical injury”,252 which was not “caught by clause 44 of sch 9” rendering a claim under the Transitional Regulations unnecessary.253 238 What was primarily and forcefully argued was that there was a relevant causal connection between the left hip arthritis and the need for hip replacement surgery which had not been assessed before hip replacement surgery. That was consistent with the orders made by the primary judge, which were to the effect that the worker was entitled to an assessment under s 22 for “the surgical injury relating to the left hip arthritis”.254 239 In the course of his address at trial, counsel for the Corporation addressed the suggested alternative only very fleetingly by contending that there could be no new injury but only a “secondary injury” which was included within the scope of the term “injury” and precluded by cl 44 of Schedule 9.255 240 No separate, new claim for a left hip arthritis injury was formally or properly made at the trial. It does not appear to have been formally or properly made before the Full Bench, either. In that context, the absence of findings regarding the evidence of Dr Sood and cl 44 of Schedule 9 concerning arthritis are 247 Worker’s final address, 13 April 2021, AB 347, line 5. 248 Worker’s final address, 13 April 2021, AB 347, line 40. 249 Worker’s final address, 13 April 2021, AB 348, line 45. 250 Worker’s final address, 13 April 2021, AB 349, line 35. 251 Worker’s final address, 13 April 2021, AB 350, line 45 – AB 351, line 5. See also AB 364, line 1. 252 Worker’s final address, 13 April 2021, AB 354, line 10. 253 Worker’s final address, 13 April 2021, AB 364, line 30. 254 Tribunal order dated 15 October 2021, paragraph 1.1, AB 44; Full Bench, [68]. 255 Corporation’s final address, 13 April 2021, AB 372, line 30, without needing to address “other injury arising from the same trauma”. -- 64 of 65 -- [2025] SASCA 48 The Court 61 understandable. Absent a cross-appeal or notice of contention, whether before the Full Bench or this Court, the contentions to the contrary must be rejected, as must the suggestion made regarding remittal. 241 Whilst it is not strictly necessary to decide this ground, it succeeds on the authority of the Full Bench decisions in Khan and Anderson because the worker’s entitlement to lump sum compensation for non-economic loss for left hip injury or impairment was resolved in 2014, and the worker had no further entitlement to lump sum compensation for non-economic loss for left hip impairment. The worker’s right to make a claim for left hip impairment merged in the earlier determinations and the orders made by the Tribunal in 2020. Conclusion 242 In these circumstances, the orders below must be set aside and the 2017 determination confirmed. -- 65 of 65 --