South Australian Employment Tribunal Act 2014

JUDGMENT OF: His Honour Deputy President Judge Gilchrist

CATCHWORDS: Appeal - Worker suffered a psychiatric injury in compensable circumstances for the purposes of the Return to Work Act and sought an assessment of his whole person impairment (WPI) pursuant to s 22 of the RTW Act to ascertain whether he met the statutory definition of a seriously injured worker - The assessing doctor arrived at a primary assessment of 28% WPI which he increased to 31% having concluded that a 3% uplift was appropriate by reference to Chapter 1.41 of the Impairment Assessment Guidelines (the Guidelines) promulgated under the RTW Act - That sub-chapter relevantly provides that: "Where the effective long-term treatment of a work injury results in apparent substantial reduction or total elimination of the worker's whole person impairment, but the worker is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of whole person impairment by 1, 2 or 3% WPI"- In his assessment report the assessing doctor provided no explanation as to why the uplift was made and how it was assessed - The compensating authority in reliance upon a medico legal report suggesting a lower WPI assessment made a determination that the worker was not a seriously injured worker - The worker sought a review of that decision and obtained a supplementary report from the s 22 assessor that provided some elaboration but his explanation for applying the uplift remained inadequate - At trial the trial judge received into evidence oral evidence from the s 22 assessor that provided further explanation as to why he applied Chapter 1.41 of the Guidelines - The judge relied upon that evidence in concluding that the s 22 assessor was entitled to apply that sub-chapter and although he stated that the assessor "never expressly explained the adoption of a 3% increase" the judge stated that he was "prepared to find the totality of his opinions does provide sufficient reasons"; that he could not say that the assessor was wrong in having applied Chapter 1.41; and that his assessment and uplift were "not occasioned by sufficient doubt to justify not giving effect to his assessment"- On appeal the compensating authority submitted that the judge erred in relying upon the oral evidence of the s 22 assessor and that in any event the evidence did not satisfy the criteria prescribed by Chapter 1.41 of the Guidelines - It further contended that the reasons provided by the s 22 assessor and the judge were legally inadequate as they provided no explanation as the why a 3% uplift applied - Held that the judge was entitled to rely upon the oral evidence of the s 22 assessor in determining whether the criteria prescribed by Chapter 1.41 of the Guidelines had been met - Held that the findings made by the assessor and the judge that they had been met did not involve any error of law and are not reviewable by the Full Bench as the appeal right is limited to a question of law - Held that the assessor did not provide a legally adequate explanation as to why a 3% uplift applied and the judge made an error of law in finding that "the totality of his opinions does provide sufficient reasons" - Held that the appeal is allowed and the judge's orders are set aside - Held that further consideration of the orders to follow is adjourned pending further submissions - Return to Work Act 2014, South Australian Employment Tribunal Act 2014, Workmen's Compensation Act 1925 (UK), Accident Compensation Act 1986 (Vic).

Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

House v The King [1936] HCA 40; (1936) 55 CLR 499

Read v Anchor-Donaldson (1928) 18 BWCC 502

Towler v British Dye Stuff Corporation (1921) 14 BWCC 34

Lianos v Inner & Eastern Health Care Network [1999] VSC 307

Soldi v Wesfarmers Limited and Return to Work Corporation Ltd (No 2) [2020] SAET 90

Return to Work Corporation of South Australia v Sweeney [2025] SASCCA 50

HJ Heinz Company Australia Ltd v Kotzman & Ors [2009] VSC 311 Commissioner of Taxation v Whitehouse [1961] HCA 10; (1961) 104 CLR 25

Badawi v Nexon Australia Pacific Pty Ltd [2009] NSWCA 324

Dallimore v Return to Work Corporation of South Australia [2020] SASCFC 115

Frkic v Return to Work Corporation of South Australia [2020] SAET 16

Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 40; (2013) 252 CLR 480

On appeal from the decision of Deputy President Judge Crawley in [2024] SAET 38

1. The respondent, Derek Morris, commenced employment with the appellant, South Australian Police (SAPOL) in 1994. From about 2009 his duties there involved processing vehicles that SAPOL had impounded. Mr Morris found it to be stressful work. He frequently had to deal with members of the public who were abusive and threatening. He found the work environment to be isolated. He felt that the unit that he worked in, in undertaking this work, was understaffed, and he felt overworked. Over time he became anxious and depressed, and by mid-October 2019, he felt unable to continue working. On 31 October 2019, he submitted a claim seeking compensation under the Return to Work Act 2014 (the RTW Act). By determination dated 21 January 2020, SAPOL accepted that claim.
2. Sometime later, Mr Morris explored whether he had a permanent impairment on account of his anxiety and depression that would lead to him meeting the definition of a seriously injured worker,[1] thereby entitling him to ongoing weekly payments of income support and medical expenses.
3. Section 22 of the RTW Act sets out the scheme that must be applied in assessing whole person impairment (WPI). Amongst other things, it provides that the assessment must be made in accordance with Impairment Assessment Guidelines (the Guidelines) that are issued by the Minister.
4. The Guidelines provide in Chapter 1.2 that they are based mainly on the American Medical Association's Guides to the Evaluation of Permanent Impairment, 5th Edition (AMA5). The two introductory chapters in AMA5 explain the purpose of and the applications and methods for performing and reporting WPI assessments. They state that the criteria contained therein "provide a standardized method for physicians to determine medical impairment".[2] They set out the examiner's roles and responsibilities. They emphasise that the assessor's role "is to provide an independent, unbiased assessment", adding that "[t]horough documentation of medical findings and their impact will ensure that the reporting is fair and consistent".[3] They then go on to provide that a "clear, accurate and complete report is essential to support a rating of permanent impairment".[4]
5. These matters are reinforced by the Guidelines. Chapter 1.4 provides that the WPI assessment "is conducted for the purpose of assessing permanent impairment in a consistent and medically objective manner". Chapter 1.43 provides that the report "should be accurate, comprehensive and fair" and Chapter 1.45 states that it "should provide a rationale consistent with the methodology and contents of the Guidelines" and "include a comparison of the evaluation's key findings with the impairment criteria in the Guidelines."
6. The assessment must be made by an accredited medical practitioner selected in accordance with the Guidelines.[5] The worker must be given the opportunity to choose the assessor who will assess their WPI. In conformity with this, SAPOL provided Mr Morris with a list of accredited psychiatrists and out of that list he nominated the psychiatrist, Dr Begg to act as his assessor.
7. Chapter 16 of the Guidelines sets out the methodology that must be applied for assessments of WPI in connection with psychiatric disorders. This is based on a text known as the Guide to the Evaluation of Psychiatric Impairment for Clinicians (GEPIC).
8. It commences by directing the assessor to be familiar with the introductory chapter of the Guidelines, and the two introductory chapters in AMA5 before conducting the assessment.
9. Chapter 16.3 of the Guidelines defines a psychiatric disorder as a syndrome characterised by clinically significant disturbance in an individual's cognition, emotion regulation or behaviour that reflects a dysfunction in the psychological, biological or developmental processes underlying mental functioning.
10. Chapter 16.8 states that in determining the level of impairment the assessor must make a clinical assessment of the impact of the psychiatric injury upon worker's intelligence, thinking, perception, judgement, mood and behaviour.
11. Intelligence is defined as the capacity for understanding.
12. Thinking is said to mean the ability to form or conceive in the mind.
13. Perception is said to refer to the brain's interpretation of internal and external stimuli.
14. Judgement is said to relate to the capacity assess a given situation and act appropriately.
15. Mood is said to concern the emotional tone underlying all behaviours such as behaviour that is disruptive, distressing or aggressive.
16. The assessor must classify the degree of impairment of each function by reference to a prescribed percentage. If the assessor determines that the degree of impairment is in the range of between 0% to 5%, it is classified as normal to slight. If the assessor determines that impairment is in the range of between 10% to 20%; it is classified as mild. If the range is between 25% to 50% the classification is moderate. A range of between 55% and 75% is moderately severe and over 75% is classified as severe.
17. The classifications are then given a numerical score ranging from 1 to 5. Normal is class 1, mild, class 2, moderate class 3 and so on.
18. The assessor must then calculate the median of the class of mental function indicators assessed as applicable in accordance with these classifications. For example, if the class classification of the various functions is 1, 1, 2, 2, 3 and 3, the median is 2.
19. Each class has a low range, a mid-range, and a high range. Within the normal to slight impairment class 1, low-range is 0% to 1%, mid-range is 2% to 3%, and high-range is 4% to 5%. In class 2, the ranges are 10% to 12%, 14% to 16% and 18% to 20%. In class 3 the ranges are 25% to 30%, 35% to 40% and 45% to 50%. The other classes have similar gradations.
20. In coming to the final assessment of WPI, the assessor must make a judgement as to which category best reflects the level of impairment. Chapter 16.12 stipulates that "[t]he assessor is required to justify why that/those symptom(s) is/are associated with a particular class of severity".
21. Dr Begg examined Mr Morris on 18 May 2023, and in a report dated 20 May 2023,[6] he set out his findings and conclusions.
22. Dr Begg considered that Mr Morris's intelligence was normal. He therefore rated the impairment as class 1.
23. Dr Begg considered that as a consequence of his disruptive ruminations Mr Morris experienced persistent subjective distress and occasional memory problems. Dr Begg rated his impairment of thinking, perception and judgement as moderate, hence falling within class 3.
24. Dr Begg found that Mr Morris had a heightened sensitivity to perceptions that noticeable interfered with his function and rated his impaired perception in the mid-range of class 2.
25. Dr Begg found that Mr Morris misjudged his work and social interactions and as a result had become withdrawn and angry. He found that this caused him to lose friendships, put strain on his relationship with his partner, and rendered him unable to work. Dr Begg rated his impairment of judgement as low range falling within class 3.
26. Dr Begg found that Mr Morris was frequently anxious, mistrustful and sad with reduced emotional capacity. He found that this was consistent with low-range severity and place him in Class 3 mood impairment.
27. Dr Begg found that Mr Morris was frequently aggressive and withdrawn which required attention and treatment, caused him to be more isolated, and that it interfered with his relationships. Dr Begg rated his impairment of behaviour as mid-range falling within class 3.
28. Thus his ratings were 1, 2, 3, 3, 3 and 3. He calculated the median as 3 and arrived at a primary assessment of WPI at 28%. It follows that he opined that Mr Morris fell within the middle of the low range.
29. At this point, it should be noted that Dr Begg took a history that Mr Morris experienced passive suicidal wishes. He wrote:

He often wakes up wishing that the world would end. He's had momentary impulses to drive in front of trucks, but said he wouldn't do this, recognising the adverse impact it would have on the other driver.[7]

1. Also of significance is that in stating that Mr Morris had reached maximum medical improvement, Dr Begg wrote:

He has had a variety of treatment modalities, both physical and psychological. He has been compliant with treatment. He has not made an adequate response to treatment. There has been no sustained period of recovery of his symptoms, nor a significant deterioration, in the last few years.[8]

1. Without further explanation in his report, Dr Begg added that there needed to be an adjustment of 3% by reference to Chapter 1.41 of the Guidelines making an overall assessment of WPI of 31%.
2. Chapter 1.41 of the Guidelines provides:

Where the effective long-term treatment of a work injury results in apparent substantial reduction or total elimination of the worker's whole person impairment, but the worker is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of whole person impairment by 1, 2 or 3% WPI. This does not apply to the use of:

analgesics

anti-inflammatory medication for pain relief, or

other symptom-relieving therapies, such as physiotherapy treatment and massage.

This does apply to impairment-altering therapies such as the effects of insulin in reducing impairment that would otherwise be present in diabetes. The assessor should document the % WPI increase, if applied, and document the reasoning in the report.

1. Based upon Dr Begg's assessment, Mr Morris qualified as a seriously injured worker as defined by the RTW Act.
2. Although it was not included in the documents placed before the judge, it seems that Mr Morris was examined by the psychiatrist, Dr Hundermark, who had provided a report in which he assessed him as having a 20% WPI.
3. By determination dated 10 July 2023, in reliance upon that report, SAPOL determined that Mr Morris had a 20% WPI and therefore determined that he was not a seriously injured worker as defined.
4. By application for review dated 27 July 2023, Mr Morris challenged that determination. In it, he contended that he should have been assessed at 31% WPI as assessed by Dr Begg, and hence that it should be determined that he is a seriously injured worker as defined.
5. Thereafter the matter proceeded through the dispute resolution process prescribed by the RTW Act, at the conclusion of which, the trial judge resolved to act upon Dr Begg's assessment.

1. In conformity with the usual practices of the Tribunal, the parties exchanged Statements of Issues and Contentions. Included in SAPOL's Statement of Issues and Contentions was a complaint that Dr Begg's assessment was not carried out in accordance with the Guidelines and was not admissible or probative.
2. In the hearing before the judge, a trial book was tendered. It contained medical reports from Dr Begg, the psychiatrist, Dr Bem, the psychologist, Mr Pawlik, Mr Morris's general practitioner, Dr Kong, his treating psychiatrist, Dr Jankowiak, and a psychiatrist retained for medico-legal purposes, Dr Clarke.
3. Dr Bem's report was historical, having been provided in December 2019 in connection with SAPOL's initial investigation of Mr Morris's claim.
4. Mr Pawlick's reports were historical, dating back to late 2019 and September 2020. Of some note his records under risk assessment as of 24 November 2019 stated:

No suicidal thoughts. 'I'm not going to take my life.' Though, he has felt very down, feeling 'I don't want to do this anymore; not to the point where I could cut my wrist or anything like that; it goes against my ideals a bit.' Overall low risk.[9]

1. Dr Kong's report was historical, recording that she had last seen Mr Morris on 3 January 2020.
2. Dr Jankowiak in a report dated 10 November 2020, recorded that he had diagnosed Mr Morris as suffering from a major depressive disorder and a likely post-traumatic stress disorder. The report noted that Mr Morris's response to medication was only partial and that he remained significantly unwell and was functionally impaired. It noted that at that time Mr Morris had no capacity for work. It expressed reservation about his future, noting that he had significant ongoing symptoms and functional impairment, despite engagement with a psychologist and being on the maximum dosage of his third antidepressant.
3. In a report dated 12 October 2022, Dr Jankowiak stated that Mr Morris had reached maximum medical improvement, that he remained severely affected by his psychiatric conditions, and that he was unfit for any type of work. He concluded by saying:

Overall he has tried reasonable medical treatments and his conditions have failed to respond adequately and his current level of impairment is likely to remain stable ...[10]

1. In a report dated 5 October 2023, Dr Clarke recorded that he examined Mr Morris on 4 September 2023. In his report he expressed the opinion that Mr Morris was suffering from a depressive disorder but expressed his disagreement with the diagnosis of post-traumatic stress disorder. He stated that in connection with his depressive disorder, Mr Morris had made little progress since ceasing work, he had no capacity for work, and his general functioning was quite poor. He expressly noted Dr Jankowiak's observation that Mr Morris had been prescribed a range of medications but they had provided little benefit.[11]
2. In a supplementary report dated 20 November 2023, Dr Begg responded to questions that had been asked of him by Mr Morris's solicitors. These related essentially to criticisms that Dr Hundermark had expressed in connection with Dr Begg's earlier report. For present purposes the only matter of significance was the following observation made by Dr Begg:

I accept that the issue of adjustment for medication treatment is complex, but I stand by my reasoning because of the improvement that comes with the treatment of depression. To turn this around the other way, is anyone suggesting that he stop treatment? If we truly believe that treatment does not affect the outcome in this case, then it should be ceased. I do not hold to that view, as I believe there is benefit from treatment, even if, in this case, there is not complete recovery.[12]

1. In a report dated 9 January 2024, Dr Clarke responded to various questions posed by SAPOL's solicitors in connection with Dr Begg's WPI assessment report and his supplementary report. He expressed minor disagreement with Dr Begg's ratings, having determined that Mr Morris was within class 2 for impaired judgement in lieu of Dr Begg's rating of class 3. Dr Clarke believed that Mr Morris's strained relationship was better characterised as relating to his mood, thinking and behaviour rather than judgement. Of some significance, Dr Clarke also noted in connection with this, Mr Morris had indicated that he would not act out on thoughts of self-harm out of consideration for his partner. Based on his ratings, Dr Clarke arrived at a median of 2.5 which the Guidelines provide must be rounded up to rating 3, with the qualification that in that event, the lowest percentage in that class apples.[13] As such, he assessed Mr Morris as having a 25% WPI.
2. On the question as to whether the uplift on account of treatment ought apply, Dr Clarke stated that it did not. He expressed the opinion that the uplift provided for by Chapter 1.41 of the Guidelines only applied "for workers with at least a substantial response to treatment".[14]
3. Dr Clarke expanded upon his views regarding Chapter 1.41 of the Guidelines in a later report dated 22 August 2024. He said that he generally found little scope to apply Chapter 1.41 when undertaking WPI assessments for psychiatric injuries, because those undergoing such assessments often remained very impaired, such that they will not, through medication and treatment, have experienced a substantial or total elimination of their impairment.
4. He gave examples of effective long-term treatment that might result in a substantial or total elimination of impairment. He identified these as including the long term use of antidepressants, anxiolytic or other neuromodulating medication, and perhaps antipsychotic medication or a mood stabiliser.
5. He then turned to consider Mr Morris and suggested that his treatment could not be described as effective long-term treatment, because at best, it had only resulted in a modest benefit that had led to a degree of psychological dependency. He added that he accepted that if the treatment was withdrawn against his wishes, it would likely result in him being in a worse state, with an associated increase in his level of impairment.
6. In a further supplementary report dated 28 August 2024, Dr Begg commented upon Dr Clarke's report of 22 August 2024. It included the following:

In my opinion, clause 1.41 is applicable where the patient shows improvement with treatment. This is not simply a reduction in symptoms, but a reduction in impairment. My practice is to look to see, either from the history or associated documents, whether there has been any improvement with treatment. I look at a person's symptoms and impairment at their worst, such as when they are suicidal, and at their current level of symptoms (with treatment). In Mr Morris's case, I noted that the guidelines suggest a class 3 impairment is between 25% and 50%. Clinically, I would have estimated a 5 to 10% increase in his impairment if he was not treated with an antidepressant. I noted that therapy had improved his condition. An example of this is his description of previous suicidal impulses to drive a car in front of a truck. Such a symptom would cut across various impairment domains from mood, thinking, behaviour and judgement. When I saw him he no longer had such severe impulses, but there was still a passive wish that the world would end. I therefore applied clause 1.41.[15]

1. Dr Begg later added that he believed that without treatment, Mr Morris's impairment level would be 5% or 10% higher.
2. In the hearing the judge received an affidavit from Mr Morris and received oral evidence from him, and Dr Begg and Dr Clarke.
3. In his affidavit Mr Morris said:

I feel that without taking the medication I would simply not be here. There was one point a while ago when I had to wean off one lot of medication and go on to another one and it was awful. I think in reality I probably should have been in hospital for that because I was having all sorts of physical reactions of sweating and nightmares and and [sic] anger and it just was not a pleasant experience.[16]

1. In his oral evidence Mr Morris expanded upon this saying:

Without the medication that I've been on through Dr David Jankowiak, after seeing him, the depression and the post-traumatic stress, the anxiety and all the other pieces that are involved with all of this, the hypervigilance, I just don't think I would've made through any more. Like, when you start adding in the additional stresses that this system puts you through, the Work Cover system puts you through, and the lack of support, and I think I've said to you previously that if I didn't have such a great partner, I would've been in a situation where I would've been living on the street, and I don't think I would've made that.[17]

1. In his oral evidence, Dr Begg elaborated on why he thought that without treatment, Mr Morris's WPI rating would be 5% to 10 % higher. He noted that within a class 3 rating, the range is between 25% to 50%. He noted that he had ascribed 28% and suggested that without treatment it "could be up to 38 or five lower than that, somewhere around that range".[18]
2. In cross-examination, it was put to Dr Begg that the medical reports that were made available to him, which included those from Mr Morris's treating psychiatrist, were to the effect that Mr Morris had not had a substantial reduction or total elimination of what would be assessed as his WPI. Dr Begg agreed with that proposition.[19] Dr Begg then explained why he had reasoned that Mr Morris had experienced an apparent substantial reduction in his WPI. He said:

The early reports of Dr Jankowiak's of his early symptoms and the high level of distress with those early symptoms, including suicidality, is the main evidence that I have, and the secondary evidence is that it was deemed necessary for him to continue on with the antidepressant.[20]

1. Dr Begg added that he disagreed with Dr Jankowiak's opinion that suggested that Mr Morris's treatment had not been effective. Dr Begg, when asked where his reasoning for so concluding was contained, stated that it was not in his report.[21] .
2. Dr Clarke reiterated that in his opinion the medication that Mr Morris had been prescribed had not led to a significant improvement in his symptoms. He described the level of improvement as modest, adding that in respect of people with quite serious illnesses, even modest gains are useful.[22] He stated that he found the reports of the treating psychiatrist helpful in determining the level of improvement in this case and stated: "clearly, there wasn't much improvement".[23]
3. In the hearing before the judge, Mr Morris's counsel noted that Chapter 16 of the Guidelines emphasised the importance of the assessor's clinical judgement. The effect of her submissions was that Dr Begg's opinion regarding the application of Chapter 1.41 of the Guidelines was one that was open, and that the differences between his opinion and that of Dr Clarke could be explained as simply an example of reasonable minds reaching a different view, which she argued was not a sufficient reason not to act on Dr Begg's assessment.
4. SAPOL's counsel invited the judge to consider the evidence of Dr Jankowiak and Mr Pawlick, and statements by them that indicated that Mr Morris's future was guarded because of the treatment resistant nature of his symptoms and his failure to respond adequately. She submitted that Dr Begg's opinion about the effectiveness of Mr Morris's treatment was not in keeping with the preponderance of evidence that pointed the other way.
5. Next, she submitted that the application of Chapter 1.41 of the Guidelines involves a series of steps. First, there must be a finding that there has been effective long-term treatment of the work injury. Next, there must be a finding that the treatment has resulted in an apparent substantial reduction or total elimination of the worker's WPI. Finally, there must be a finding that if the treatment is withdrawn, the worker is likely to revert to the original degree of impairment. She submitted that once that conclusion has been reached, the assessor must determine what percentage uplift ought apply. She submitted that Dr Begg did not adopt this approach but rather, he appears to have reasoned that because Mr Morris would be worse off without treatment, Chapter 1.41 of the Guidelines applied.
6. SAPOL's counsel noted that within Dr Begg's original assessment report were the statements about Mr Morris not making an adequate response to treatment, and was not experiencing a sustained period of recovery of his symptoms. She submitted that these demonstrated that there had not been effective long-term treatment of Mr Morris's work injury, nor had the treatment resulted in apparent substantial reduction or total elimination of his WPI. She then submitted that all that Dr Begg was saying was that if the treatment was withdrawn, he would get worse, with no explanation as to how the 5% or 10% increase in WPI arose, or how the uplift of 3% was arrived at. She added that the lack of exposure of reasoning was of itself a problem.
7. SAPOL's position at trial was that the uplift should be removed and the primary assessment of 28% WPI ought apply. In the alternative, it submitted that it would be open for the Court to find that Dr Begg's assessment miscarried, and the assessment at large should be referred to an Independent Medical Adviser (IMA) pursuant to s 121 of the RTW Act.
8. By way of reply, Mr Morris's counsel submitted that if there was to be a referral to an IMA, the referral should be limited to whether, and if so how, the Chapter 1.41 uplift applies.

1. The judge took the view that Dr Clarke construed "substantial reduction" as it appears in Chapter 1.41 of the Guidelines as meaning something approaching total elimination and he rejected that construction. He stated that "substantial" meant no more that "of ample or considerable amount, quantity or size" and stated that when considered in that context, Dr Begg's conclusion that there had been substantial reduction of WPI was not "occasioned by sufficient doubt to warrant interference".[24]
2. The judge noted that the Guidelines did not provide any guidance as to how Chapter 1.41 was to be applied. He appears to have rejected the notion that the amount of the uplift was to be determined by way of some proportionate scale. He said that it "appears to be a value judgment left up to the assessor".[25]
3. The judge then stated that Dr Begg appeared to have used 3% as a cap, and that because in his opinion the extent of the reduction of symptoms as a result of the impact of his medication and treatment was greater than 3%, the 3% cap applied. He added that Dr Begg never expressly explained how he arrived at 3% before stating that SAPOL had "produced no real argument to impugn that approach".[26]
4. The judge accepted the submission that Dr Begg's original report did not provide reasons regarding his application of Chapter 1.41 of the Guidelines. He noted that there was some explanation in his supplementary reports but added that even when these were taken into account, collectively they did not properly explain why a 3% uplift was applied.
5. However, after setting out the following passage from Dr Begg's evidence:

[H]e had a class III moderate impairment, which gives a -a very wide range of possible impairment ratings from 25 to 50 percent, I believe, offhand. And I thought that he would be still in the moderate impairment, but a lot higher than he was, and so, I - I thought clinically it would be between 5 and - I assessed him as 28, and I thought it would - could be up to 38 or five lower than that, so somewhere around that range. And I realise that's not related at all to the 3 percent that's allowed, but that wasn't the question. The question was what did I think his impairment would increase.[27]

the judge said that when this was added to his reports, he was "prepared to find the totality of his opinions does provide sufficient reasons".[28]

1. Finally, the judge said that he could not say that Dr Begg was wrong in having applied Chapter 1.41 and that his assessment and uplift were "not occasioned by sufficient doubt to justify not giving effect to his assessment".[29]
2. At the conclusion of the hearing the judge made the following orders:
   1. The determination of the Respondent dated 10 July 2023 is set aside and substituted by a decision that the applicant is taken to be a seriously injured worker pursuant to section 21(2)(a) of the Return To Work Act (2014) (the Act), based on an assessment of whole person impairment pursuant to section 22 of the Act by Dr Begg of 31% whole person impairment in his report of 20 May 2023.
   2. In consequence of Order 1, the applicant is entitled to: a. Weekly payments from 9/10/2021, pursuant to section 41 of the Act with relevant increases applied, in accordance with section 47 of the Act, ongoing until lawfully discontinued; b. Interest on backpay pursuant to Section 65 of the Act; c. Reasonable medical and other expenses from 9/10/2022 pursuant to section 33 of the Act.
   3. The applicant is entitled to legal costs and disbursements to be agreed or otherwise determined.
   4. Liberty to apply.

1. In prosecuting the appeal, SAPOL relies upon two grounds.
2. The first asserts that the judge misapplied s 22(2) and s 22(8)(h) of the RTW Act because Dr Begg's assessment was not made in accordance with the Guidelines. Under this complaint, it contended that in contravention of the instructions given in the Guidelines regarding what the assessor must include in the WPI report, Dr Begg did not document the reasoning underpinning his decision to apply Chapter 1.41 of the Guidelines and to make a 3%WPI uplift.
3. SAPOL submitted that because Dr Begg's report did not comply with the minimum requirements of a WPI assessment, his assessment report was invalid. Next, it submitted that such invalidity could not be remedied through elaboration given by the assessor at trial. It contended that once a determination of entitlement had been made, there is no capacity for the assessor to remedy any defects in the report. It submitted that if it were otherwise, the scheme for assessment would be undermined by making it dependent upon what attitude is taken to the determination and whether a review of such determination is instituted. It added that in this case the non-conformity was not of a trifling nature and that there was no scope to apply principles along the lines of the maxim de minimis non curat lex[30].
4. Under this ground, it further contended that in any event, the circumstances of the case did not satisfy the antecedent requirements for the application of Chapter 1.41 of the Guidelines. It submitted that Chapter 1.41 does not provide for the exercise of a general discretion in the assessor but rather it requires specific findings of the various criteria contained in the clause. It submitted that there were no such findings, nor could there be, as Mr Morris's treatment had not resulted in a substantial reduction or total elimination of his WPI. It pointed to the evidence in contending that treatment had not resulted in a significant improvement in Mr Morris's mental state and which cast doubt over Dr Begg's view that prior to treatment Mr Morris was potentially suicidal.
5. SAPOL submitted that the words "apparent substantial reduction" must be construed in the context of the words "or total elimination of the worker's WPI". It referred to the maxim noscitur a sociis being an aid to statutory interpretation that can be relied upon to restrict the meaning of a words or phrase by reference to the words or phrases that surround it.
6. SAPOL submitted that the word "substantial" should be construed as meaning "of large size" or amount in the context of the comparison between the before treatment and after effective treatment degrees of WPI. It submitted that Chapter 1.41 of the Guidelines applies independently of any consideration of the effect of the WPI assessed in terms of thresholds or consequential amounts or quantum of entitlement to lump sum compensation, such that the importance or the value of the uplift is not a consideration. It submitted that to adopt this approach is consistent with the fact that the reduction that can be the subject of Chapter 1.41 can be the total elimination of the worker's WPI.
7. It then submitted that the word "apparent" means "readily visible or perceivable" to explain the magnitude of the reduction required to satisfy the criteria prescribed. It submitted that the alternative meaning, "seeming" is not consistent with the requirement that maximum medical improvement having been achieved before the degree of WPI is being assessed and before consideration is being given to any adjustment for the effects of treatment under Chapter 1.41 of the Guidelines.
8. SAPOL noted that a reduction of between 5% and 10% to the assessed 28% WPI, resulted in the an assessment that was within the same class of the degree of impairment, namely class 3 under the GEPIC criteria. It then submitted that in the context of the sub-chapter which contemplates total elimination as being a qualifying criterion, this was neither a readily visible or perceivable reduction, nor should it be seen as a reduction of a large size or amount.
9. SAPOL submitted that based on Dr Begg's assessment, the discretion to make an adjustment for the effects of treatment was not enlivened.
10. The second ground asserts that the judge failed to provide adequate reasons for his decision, and in particular as to the application and construction of Chapter 1.41 of the Guidelines to the circumstances of the case.
11. SAPOL submitted that the judge erroneously abrogated the evaluative judgement required under Chapter 1.41 to Dr Begg and failed to independently decide whether the uplift applied, and if so to what extent. It added that the extent that the judge's reasons can be read as embracing the Dr Begg's judgement, Dr Begg himself provided no reasons as to why the reduction was an apparent substantial reduction for the purposes of and within the meaning of Chapter 1.41.
12. SAPOL submitted that the judge failed to expose his reasoning on the point critical to the contest between the parties and that it is not possible to determine, based on his reasons, what construction was given to the phrase "apparent substantial reduction" or how its application to the facts as found, enlivened the application of Chapter 1.41 of the Guidelines.
13. We understood SAPOL to leave for further argument what orders should follow in the event that its appeal succeeds.
14. Mr Morris submitted that in conformity with the Tribunal's adjudicative function it was obliged to take into account all of the evidence presented, which included Dr Begg's oral evidence. He submitted that had the judge discounted Dr Begg's oral evidence, simply on the basis that the reasoning in the reports was deficient, this would have been entirely at odds with the Tribunal's statutory objective to promote the best principles of decision making.
15. Mr Morris submitted that the effect of what SAPOL was contending was that the deficiencies in Dr Begg's reports rendered the s 22 assessment process in this case invalid. He submitted that in determining the consequences of a deficient report by an accredited assessor, it is instructive to reflect upon the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky v Australian Broadcasting Authority[31] where they said:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.[32]

1. By reference to this, Mr Morris accepted that there might be certain pre-requisites to a s 22 assessment that if not met could render the process nugatory. He accepted that unless the assessment is carried out by an accredited medical practitioner, the power conferred by section 22 to the practitioner is of no effect. He then submitted that in this case there was no issue that Dr Begg was an accredited assessor. He submitted that there was no discernible legislative purpose achieved by holding that a breach of the requirements of Chapter 1.45 of the Guidelines invalidated the assessment. Thus, he contended that the fact that Dr Begg's initial report failed to meet the standard required by Chapter 1.45 of the Guidelines, did not render his assessment invalid, such that it could be, and in this case was, remedied by his oral evidence.
2. Next, he submitted that the judge accepted Dr Begg's opinion that prior to the current medication regime, his WPI would have been 5 to 10% higher, had he not commenced on medication, such that his WPI would have been between 33% and 38%. He submitted that the reduction back to 28% WPI following treatment was, contrary to SAPOL's submission, a readily visible and perceivable reduction, and it was a reduction of a large size or amount. He submitted that the judge correctly rejected the evidence of Dr Clarke who opined that" "substantial reduction" meant something approaching total elimination and that the judge was right to find that "substantial" is not a medical term nor used in any technical sense and that he was right to apply its ordinary meaning of "ample or considerable amount, quantity, size".
3. Mr Morris noted that Chapter 1.41 of the Guidelines does not proffer any guidance to an assessor as to when long term treatment of a work injury results in an "apparent substantial reduction" of a worker's WPI, or how such a conclusion should inform the application of the 1, 2 or 3% WPI. He submitted that in those circumstances, and as found by the judge, "the application of the clause therefore appears to be a value judgment left up to the assessor". He submitted that this view is reinforced by the fact that the very application of Chapter 1.41 is left to the discretion of the assessor, because even if the assessor is of the view that long-term treatment has resulted in a substantial reduction in the worker's WPI, impairment, the assessor may increase the percentage WPI, but is not obliged to do so.
4. Mr Morris submitted that the word "apparent" as it appears in Chapter 1.41 means no more that it must be apparent to the assessor.
5. Mr Morris submitted that because of the discretionary nature of Chapter 1.41 of the Guidelines, the judge was right to approach Dr Begg's assessment with principles outlined in House v The King,[33] firmly in mind. That case concerned a criminal sentence and it was held that sentencing involves the exercise of a discretion. The High Court stated that the discretion can only be overturned on appeal if the primary judge had acted upon a wrong principle, had allowed extraneous or irrelevant matters to guide or affect him or her, had mistaken the facts or had not taken into account some material consideration, or had arrived at a sentence that was so manifestly inadequate or manifestly excessive, that even though specific error cannot be identified, the exercise of the discretion must be reviewed on the ground that a substantial wrong has in fact occurred.
6. Mr Morris submitted that the judge correctly noted that SAPOL did not proffer any argument to impugn Dr Begg's conclusion and the mere fact than another psychiatrist might have formed a different view of the facts, did not establish error.
7. As to the adequacy of the judge's reasons, Mr Morris submitted that once it is accepted that the application of Chapter 1.41 of the Guidelines is within the assessor's discretion, SAPOL's complaint that the judge abrogated the evaluative judgement required under by the clause, falls away. He submitted that the judge having correctly found that the application of the clause is a value judgement for the relevant assessor, all he was obliged to do was set out Dr Begg's reasoning, which he did.
8. Mr Morris added that the complaint that Dr Begg had failed to disclose his process of reasoning was without foundation. He noted that in his oral evidence, Dr Begg referred to the reports of Dr Jankowiak, which spoke of the symptoms Mr Morris experienced in the preliminary stages of his condition, and the high level of distress associated with those symptoms, which included suicidality. He noted that in his supplementary report of 28 August 2024, Dr Begg said that he looked at a person's symptoms and impairment when they were at their worst, such as when they are suicidal. He noted that Dr Begg recorded that for him, therapy had improved his condition because he no longer had suicidal impulses to drive his car in front of a truck. He submitted that Dr Begg correctly applied both a qualitative and quantitative approach. In qualitative terms, it was the difference between his taking his own life or not. In quantitative terms, that equated to a difference of between 5 to 10% WPI, which Dr Begg observed cut across various impairment domains including mood, thinking, behaviour and judgement. He submitted that taken together, Dr Begg was justified in concluding that they amounted to a substantial reduction.

1. It is common ground that neither the first report of Dr Begg, nor his supplementary report, provided a rationale consistent with the methodology and contents of the Guidelines as to how the 3% uplift provided for by cl 1.41 of the Guidelines was arrived at. They therefore did not comply with the requirements of cl 1.45 of the Guidelines, nor did they comply the instructions regarding reports contained in the introductory chapters in AMA5.
2. Can this defect be remedied by evidence given at trial? In contending not, SAPOL did not identify any provision in the Act, any clause in the Guidelines, or any authority from this Court or the Supreme Court, that supported its contention that once the relevant compensating authority makes a determination on the WPI assessment, there is no further opportunity for the s 22 assessor to elaborate on the report and remedy any deficiency. In our opinion, there is no justification for inferring such a limitation.
3. The notion of medical experts providing authoritative opinions on medical questions to assist in determining entitlements under workers compensation legislation is not novel, nor is the idea of seeking clarification from such experts to resolve deficiencies or ambiguity in such opinions in connection with subsequent litigation.
4. Under the English Workmen's Compensation Act 1925 there was power to refer certain medical questions to a medical referee that an arbitrator could act upon in determining proceedings concerning a worker's entitlements to compensation. There is an established line of authority that the arbitrator could remit a report back to the referee, if matters that were the subject of the referral had been overlooked.[34] There is also authority that recognises that it is within an arbitrator's or a court's power to seek clarification from the referee, if the referee's report was thought to be ambiguous.[35]
5. Under comparable workers compensation legislation in Victoria, provision is made for medical panels to provide authoritative opinions on various medical questions. The English authorities just referred to, were relied upon by the Supreme Court of Victoria in adopting the practice of seeking clarification from medical panels in connection with their opinions. In Victoria, it was open for a party wishing to assert that an opinion from a medical panel was in some way deficient to make an application to the Supreme Court of Victoria by way of judicial review seeking a declaration to that effect. But in Lianos v Inner & Eastern Health Care Network,[36] in discouraging that approach, Teague J spoke of it being preferable for a court to adopt a practical clarification approach rather than a technical review approach, when dealing with concerns as to the meaning of certificates provided by medical opinion-givers. He suggested that a preferable option might be to go back to the certifying doctors to obtain clarification. In connection with the workers compensation legislation under consideration there, Teague J noted that in respect of how concerns as to the meaning of a certificate might be dealt with, the Act was silent as to courses that might be followed. Having observed that the legislation did not state that seeking clarification was inappropriate or forbidden, he reasoned that there was every reason to think that Parliament intended quite the contrary.
6. In our view, the same is true in respect of the legislative instruments under consideration here.
7. As observed by the High Court in the extract from Project Blue Sky referred to above, whether an act done in breach of a condition regulating the exercise of a statutory power is invalid and of no effect, depends upon whether there is a discernible legislative purpose to invalidate an act that fails to comply with the condition.
8. The general review jurisdiction of the Tribunal under s 27 of the South Australian Employment Tribunal Act 2014 (the SAET Act) provides that in conducting an application for a review of a decision, the Tribunal must reach the correct and preferable decision, whilst having regard to the decision of the original decision-maker. In that process, the Tribunal is required to examine the evidence or material before the decision-maker, and may also consider any further evidence or material that it decides to admit for the purposes of the rehearing.
9. On an application for review under the RTW Act, the powers of the Tribunal are more extensive. Section 98 of the RTW Act provides that the Tribunal will conduct a review of a reviewable decision as a hearing de novo. In reviewing such decisions, the Tribunal is enjoined to comply with the objectives set out in s 8 of the SAET Act, which include high quality, consistent decision-making, and high quality processes which are flexible, with procedures which best fit the circumstances of a particular case or jurisdiction.
10. The categories of reviewable decision open to challenge on this basis include a decision under s 97(d) of the RTW Act as to WPI assessment under s 22.
11. The proceedings before the judge were conducted in a manner consistent with the de novo hearing process. The determination, the subject of the application for review, was that Mr Morris had sustained a WPI of 20% and that Dr Begg's assessment of 31% WPI had not been accepted because his diagnosis included a disorder not accepted as compensable.
12. At the hearing however, the central question became whether Dr Begg's assessment had miscarried. In this context, the parties raised issues about Mr Morris's entitlement which were not put in issue at the time of the determination. At the same time the judge had regard to evidence that became available after the original decision was made, or which amplified or further explained the basis on which it was made. This is the very nature of the processes contemplated by a de novo hearing.[37]
13. Having regard to the legislation governing the processes and objectives of the Tribunal, and the specific conferral of a de novo jurisdiction with respect to disputed decisions under the RTW Act, we do not accept that there is a discernible legislative purpose that limits the scope of that jurisdiction to the extent that any s 22 assessment which is not made in accordance with the Guidelines is thereby necessarily invalid and of no effect.
14. We are reinforced in that conclusion by the provisions contained in the RTW Act concerning IMAs. Section 121 of the RTW Act makes provision for the Tribunal to appoint IMAs to provide opinions on medical questions. A "medical question" specifically includes, amongst others, "a permanent impairment matter".[38] Section 124 of the RTW Act states that the IMA "is competent to give evidence as to any matter in a report furnished by the IMA". It would be an odd result that the RTW Act would permit an IMA to give evidence to meet any deficiency or clear up any ambiguity in a report about an assessment of WPI, but would not permit an assessor appointed under s 22 of the RTW Act to do so.
15. We therefore reject SAPOL's submission that because a determination of entitlement had been made, there was no capacity for the assessor to remedy any defects in the report. In our opinion, it was appropriate for the judge to have received oral evidence from Dr Begg that elaborated on and clarified the opinions he expressed in his reports, and for the judge to have acted upon that evidence on deciding whether or not Dr Begg was correct to conclude that the uplift provided for by Chapter 1.41 of the Guidelines applied and that his primary assessment of 28% WPI should be increased by 3% so as to result in a final assessment of 31% WPI.
16. We now turn to consider whether the judge was correct in acting upon Dr Begg's reports and evidence in concluding that Mr Morris has a 31% WPI on account of his psychiatric injury.
17. We commence by observing that several of the criticisms made by SAPOL in connection with its complaint that the circumstances of the case did not satisfy the antecedent requirements for the application of Chapter 1.41 of the Guidelines concerned alleged errors of fact. As our jurisdiction on appeal is limited to questions of law,[39] we cannot entertain these. [40]
18. What is properly before us is how Chapter 1.41 of the Guidelines should be construed. This is pure question of law.[41]
19. In approaching the question of construction, we note that the word "substantial" is an ordinary word and that the expression "substantial reduction" is a comparative or relative concept. Their meaning is plain and unambiguous. As was observed by the High Court in Commissioner of Taxation v Whitehouse[42], the maxim noscitur a sociis can only be called in aid in construing a word or phrase when there is ambiguity or doubt.[43] Because in this case there is no ambiguity or doubt, contrary to the submission advanced by SAPOL, there is no need to colour the meaning of "substantial reduction" by reference to the expression "total elimination".
20. With respect, we agree with the observations of Allsop P, Beazley and McColl JA in Badawi v Nexon Australia Pacific Pty Ltd[44] that in respect of how the word "substantial" should be applied, "it is not useful to search for or use other terms, such as "large", or "weighty", or by way of further example, other concepts such as "predominant"".[45] As they observed, "to do so may carry the vice of introducing concepts with different nuances from the words used by the legislature and which would take the meaning of the word beyond that needed to fulfil the purpose of the provision in its legislative context".[46] The actual words of the sub-clause convey the notion of the reduction of the worker's WPI as being one that is real and of substance. In our view, this is how they should be construed in connection with Chapter 1.41 of the Guidelines. To the extent that the parties' submissions contend otherwise, we reject them.
21. Given our view as to how Chapter 1.41 should be construed, we are unable to identify any error of law made by Dr Begg, or by extension, the judge, in finding that on account of treatment, Mr Morris had experienced an apparent substantial reduction in his WPI.
22. We now turn to consider Dr Begg's conclusion that a 3% uplift was warranted in this case.
23. It seems to us that there are three possible constructions as to how the amount of the uplift provided by Chapter 1.41 of the Guidelines is to be determined.
24. The first, which is in effect what Mr Morris was contending, is that when the qualifying criteria have been met, the assessor has a broad discretion as to the amount of the uplift, subject to it not exceeding 3%.
25. The second, which is the approach that the judge thought might have been the one adopted by Dr Begg, is that it is based upon the quantification of the WPI that is likely to result from the withdrawing treatment, subject to a cap of 3%. In other words, if the increase in WPI upon cessation of treatment is greater than 3%, the uplift is 3%, because no greater amount can apply.
26. The third, which is broadly consistent what SAPOL was contending[47], is that each percentage point be it 1%, 2% or 3%, reflects a range similar to the gradations that apply elsewhere in the Guidelines, such as those mentioned above in respect of the GEPIC assessment. This requires the assessor, when the criteria prescribed in Chapter 1.41 have been met, to consider by reference to the range of improvement achievable by treatment, whether the case is at the lower, middle, or upper end of the range.
27. In HJ Heinz Company Australia Ltd v Kotzman & Ors, Kyrou J when speaking of the AMA Guides, said as follows:

The use of the Guides is designed to promote precision, certainty and consistency. Its purpose is to make as objective as possible the process of estimating impairment by reference to sufficient medical and non-medical information to justify the estimate.[48]

1. To like effect are the observations of Stanley J in Dallimore v Return to Work Corporation of South Australia where he said that although AMA5 envisages the assessor's exercise of clinical judgement, it does not permit the exercise of professional judgement at large, because it intends for there to be "standardised processes which produce similar outcomes irrespective of who conducts the assessment".[49] (Emphasis ours)
2. These statements emphasise that the evident purpose of the Guidelines and the AMA5 is to provide "a standardized objective approach to evaluating medical impairments".[50] There is no reason to approach the construction of Chapter 1.41 of the Guidelines any differently.
3. It would run counter to this, to ascribe to Chapter 1.41 the conferral of a broad discretion. It could lead varying outcomes depending upon the idiosyncratic views of the assessor. This would be contrary to the expectation that assessments of WPI should result in similar outcomes, irrespective of who conducts the assessment. Accordingly, the first construction must be rejected.
4. If the second suggested approach were correct, a reduction of WPI of 1%, 2% or 3% brought about by treatment may warrant the application of Chapter 1.41 This would be inconsistent with the qualifying criterion which requires an apparent substantial reduction or total elimination of the worker's WPI.
5. This indicates to us that the third suggested construction must be correct.
6. It follows that Mr Morris's submission that the application of Chapter 1.41 of the Guidelines is essentially discretionary, must be rejected. Whilst there is plainly an element of clinical judgement involved, a degree of objective analysis is required to fulfil the expectations of certainty and consistency in the process of estimating WPI. We further observe that when the stipulated criteria have been met, the options available are to allow an additional 1, 2, or 3% WPI.
7. In Wingfoot Australia Partners Pty Ltd v Kocak the High Court held that in respect of the opinions expressed by medical panels under the Accident Compensation Act 1986 (Vic):

The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.[51]

1. There is no reason to suppose that any lesser standard applies to assessment reports conducted under s 22 of the RTW Act.
2. Whilst Dr Begg provided an explanation as to why he thought treatment had resulted in an apparent substantial reduction in Mr Morris's WPI, as the judge rightly observed, he "never expressly explained the adoption of a 3% increase".[52]
3. Having considered his reports and oral evidence, we are unable to determine whether he turned his mind to consider, by reference to the range of improvement achievable by treatment, where the extent of the reduction in Mr Morris's impairment sat, so as to conclude that it was in the upper range warranting the maximum 3% uplift that Chapter 1.41 of the Guidelines permits.
4. This Court is therefore unable to determine whether Dr Begg applied the correct legal test. In light of this, Dr Begg's explanation as to why he applied the 3% uplift in this case was, for legal purposes, inadequate.
5. Having concluded that Dr Begg's reasons, as elaborated upon by his evidence, remained legally inadequate, respectfully, we cannot agree with the judge's conclusion that "the totality of his opinions does provide sufficient reasons". In our respectful opinion, the judge made an error of law in reaching this conclusion and the appeal must therefore be allowed.
6. We would like to hear from the parties as to what orders should now follow.
7. Of the options potentially available, one can be immediately rejected.
8. Dr Begg has on multiple occasions failed to adequately explain how he concluded that by application of Chapter 1.41 of the Guidelines, a 3 % uplift of WPI was appropriate. For justice to be seen to be done in this case, it would not be tenable for there to be a further hearing before the judge or another member, to enable Dr Begg a further opportunity to provide a legally adequate explanation for him reaching that conclusion. Thus, in terms of resolving the issues between Mr Morris and SAPOL, Dr Begg's opinion regarding the application of Chapter 1.41 of the Guidelines must be ignored.
9. But it begs the question as to whether the balance of his opinions ought still be relied upon. In that event, it might be thought appropriate to seek an opinion from an IMA limited to the potential application of Chapter 1.41 of the Guidelines in conformity with these reasons.
10. Another alternative might be to seek an opinion from an IMA as to the whole assessment of Mr Morris's WPI including the primary assessment of his psychiatric impairment, whether the criteria prescribed by Chapter 1.41 of the Guidelines have been met, and if so, what percentage uplift should apply.
11. In either case, it also begs the question as to who should make the referral.
12. Another option might be for us to simply set aside SAPOL's determination of 10 July 2023 and leave it to Mr Morris to pursue such action as he thinks appropriate.

*** The appeal is allowed and the judge's orders are set aside.

• We adjourn further consideration of any further orders to a date to be fixed.
• The matter is adjourned for directions before Deputy President Judge Gilchrist at 9.45 am on Tuesday 24 June 2025 to discuss the relisting of the matter.**

[1] Section 21 (2) (a) of the RTW Act provides that in the case of a psychiatric injury, a worker with a 30% or more whole person impairment qualifies on account of that injury is a seriously injured worker.

[24] [2024] SAET 38 at [24].

[30] This maxim is to the effect that the law does not concern itself with trifling or minor matters.

[31] [1998] HCA 28; (1998) 194 CLR 355.

[33] [1936] HCA 40; (1936) 55 CLR 499 at 505.

[34] See, for example: Read v Anchor-Donaldson (1928) 18 BWCC 502.

[35] See, for example: Towler v British Dye Stuff Corporation (1921) 14 BWCC 34.

[36] [1999] VSC 307.

[37] Soldi v Wesfarmers Limited and Return to Work Corporation Ltd (No 2) [2020] SAET 90 [20]-[21].

[39] Section 26I of the South Australian Employment Act 2014.

[40] Return to Work Corporation of South Australia v Sweeney [2025] SASCCA 50 at [85]-[87].

[41] HJ Heinz Company Australia Ltd v Kotzman & Ors [2009] VSC 311 at [24] per Kyrou J.

[42] [1961] HCA 10; (1961) 104 CLR 25.

[44] [2009] NSWCA 324.

[47] We say "broadly consistent" because SAPOL went further by submitting that the 3% uplift could only be applied if there was total or near total elimination of symptoms by treatment. We reject that contention because it is too prescriptive.

[49] [2020] SASCFC 115 at [34].

[50] Dallimore Ibid at [101]. See also: Frkic v Return to Work Corporation of South Australia [2020] SAET 16 at [48]-49].

[51] [2013] HCA 40; (2013) 252 CLR 480 at [55].