Bauduccio and Comcare

[2007] AATA 1738

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1738

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No V200600889

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANGELO BAUDUCCIO

Applicant

And COMCARE

Respondent

DECISION

Tribunal Regina Perton, Member
Anne Shanahan, Member

Date6 September 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

Regina Perton

Presiding Member

COMPENSATION ‑ whether injury compensable – whether injury occurred on journey to work or at work ‑ decision affirmed

Safety, Rehabilitation and Compensation Act 1988 ss 4, 14

Gregory v Comcare Australia (1997) 72 FCR 196

Humphrey Earl Limited v Speechley (1951) 84 CLR 126

REASONS FOR DECISION

6 September 2007 Regina Perton, Member
Anne Shanahan, Member

1.       Angelo Bauduccio has been employed by the Department of Defence for more than 25 years.  He started his working life as a toolmaker. Following an injury, he retrained as a cartographer.  In December 2005, when the injury that is the subject of this review occurred, he was working as a flip editor. 

2.       Mr Bauduccio lodged a claim for workers’ compensation after falling while taking a shower before commencing work.  He indicated that the shower was at the premises where he worked.  The fall occurred before the official working day started.  Mr Bauduccio did not take any time off work because of the injury.  He is concerned that there may be later consequences for him due to the injury. 

3.       Mr Bauduccio lodged a claim for compensation on 14 December 2005.  On 20 June 2006, Comcare determined that Mr Bauduccio was not entitled to compensation as his injury had not arisen out of or in the course of his employment.  On 7 July 2006, Mr Bauduccio sought a reconsideration of the decision.  On 7 September 2006, a review officer of Comcare affirmed the original decision.  On 25 September 2006, Mr Bauduccio lodged an application for review of the decision with the Tribunal.

4.       The issue for the Tribunal is whether an injury arose on 13 December 2005 out of or in the course of Mr Bauduccio’s employment with the Department of Defence. 

Legislative Framework

5. Section 6 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) describes the circumstances in which an injury can be treated as having arisen out of, or in the course of, a person’s employment. There have been changes to s 6, and to other sections of the Act, since the claim was lodged. However, the applicable legislation is the legislation in operation at the date the injury was sustained. The relevant portions of s 6 which applied on 13 December 2005, when the applicant sustained his injury, is as follows:

6(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:

…

(b)       while the employee:

(i)was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment;

(ii)was travelling between his or her place of residence and place of work, other than during an ordinary recess in that employment;

…√

6.       Section 4 of the Act, as it was at the date the injury was sustained, provides definitions of many of the terms used in the Act, including injury and place of work: 

injury means:

(a)a disease suffered by an employee; or

(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;

…

place of work, in relation to an employee, includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment.

Circumstances in which the injury occurred

7.       In his claim form, completed on 14 December 2005, Mr Bauduccio stated that he had injured his lower back and buttocks at approximately 6:50 am on 13 December 2005.  He stated that he sought medical treatment that day.  He indicated that he was showering after physical activity… in the shower block at St Kilda Rd. Melbourne.   He stated that the floor was wet and he had been injured due to the floor and step.  He indicated that the injury did not occur while he was travelling to or from work.  Mr Bauduccio described the chain of events leading to the injury as I did not see little step in shower and lost balance and ended up on my bottom.

8.       In a Statement of Facts dated 31 March 2006, Ms Jo Hanrahan, Workforce Manager of the Aerospace Operational Support Group, stated:

We are aware that Mr Angelo Bauduccio has a pre-existing back injury and according to the report provided after a work station assessment conducted on 29 November 2005, he had not been receiving treatment for this due to financial constraints.  This work site evaluation report was provided by Advanced Personnel Management on 06 December 2005.  Mr Bauduccio undertakes sedentary physical activity in the course of his duties performing non-strenuous daily activities of an administrative nature.

Mr Bauduccio exercises of his accord in his own time and often utilises the gym facilities at Victoria Barracks.  This activity is not a unit approved activity or requirement.  His work area advises that they are not aware of his routine and whether this is in the mornings or at lunchtimes and if it is a daily occurrence.

…

According to the attendance diary provided by Mr Bauduccio, he did not commence duty until 0700 hours.  His claim states that the injury occurred at 0650 hours, ten minutes prior to starting work.  Mr Bauduccio was not at his normal workplace at the time he claimed his injury.

9.       On 9 June 2006, in response to a request for further information concerning Mr Bauduccio’s physical activities, Mr Lyndon Johnson, Mr Bauduccio’s supervisor, confirmed that: 

…Angelo generally used the gym and showered before attending work.  The gym is located in a separate building to that he works in. 

10.     After Comcare refused his claim on 20 June 2006, Mr Bauduccio sought reconsideration of the decision.  In his request for reconsideration, he stated:

I do not agree to decision because it happened at work in your premises.  I was getting ready to get to work.  I do have to be at work some time before commencing work being 10 minutes or 1 minute doing things sitting at desk walking or making a coffee or using toilet or using facilities provided for my personal comfort e.g. brushing teeth or washing my hands.  Your argument is therefore not valid saying that it is not “an approved activity or requirement”.  Even going to toilet is not before hours.

I think under the circumstances this activity was incidental for me to get “Ready” for work.

I therefore claim $141.60 payable by Comcare to me.  I used no time off to see doctors, or medication…

11.     On 7 September 2006, the Comcare review officer affirmed the decision.  In his application for review, lodged at the Tribunal on 25 September 2006, Mr Bauduccio stated that he was seeking review because the decision was wrong.

12.     In oral evidence, Mr Bauduccio initially stated that it was his usual practice to catch the train to Flinders Street railway station and then walk down St Kilda Road to the Victoria Barracks where he worked.  He said that he was often quite sweaty upon arriving at his work.  He wore a track suit until he reached work and showered and changed into work clothes before commencing work.  He brought in clothes for the week on the Monday.  He generally arrived before 7 a.m., which was the earliest official starting time under the flexitime system for employees of the Department of Defence based at St Kilda Road.  Employees could work between 7 a.m. and 7 p.m.  Mr Bauduccio said that he was sometimes at his desk before 7 a.m. notwithstanding that he could not claim the time. 

13.     Mr Bauduccio said that the shower he used was on a lower floor of the building in which he worked.  He was able to use the shower during the early hours of the day.  At other times, it was restricted to medical staff in the hospital located on that floor.  Mr Bauduccio said that on 13 December 2005, he walked from Flinders Street railway station after arriving by train, made himself a cup of coffee and went down for a shower.  He slipped in the shower and fell on his bottom.  It was painful.  He went upstairs, told a colleague what had happened and began work.  His colleague suggested he complete a report about the incident.  Mr Bauduccio said that he took no time off work due to the injury.  He said that the pain on this occasion was different to the back pain he had previously experienced  

14.     Under cross-examination by Mr J Lenczner, counsel for the respondent, Mr Bauduccio agreed that he had returned to the St Kilda Road workplace in September 2005 after being at the Royal Australian Air Force Museum on light duties due to a medical problem unrelated to the subject of this claim.  He conceded that he had not been keen to work in the position to which he had been assigned at St Kilda Road, which was different and required less skill than his training had prepared him for. 

15.     Mr Bauduccio was questioned in detail about the physical details of the shower.  He identified a shower located on the first floor in the building in which he worked.  There was also a shower block next to the gymnasium.  Mr Johnson, Mr Bauduccio’s supervisor, had assumed that Mr Bauduccio had used this shower due to his use of the term shower block in his claim rather than shower cubicle. 

16.     Mr Bauduccio said that he used the gymnasium in the complex at different times of the day: sometimes lunchtime, sometimes before and sometimes after work.  He said that he would usually shower in his building rather than the shower block near the gymnasium in the morning.  He agreed that he was required to sign an attendance book at the gymnasium. 

17.     Mr Bauduccio was shown the gymnasium’s attendance book for 13 December 2005.  There was an entry in his name showing that he had signed in at 0635 and signed out of 0650, the time at which he had claimed he had slipped in the shower.  Mr Bauduccio said that it was possible that he had gone to the gymnasium and then showered rather than walked to work and then showered.  He could not remember the events preceding the fall but said that he clearly remembered the fall in the shower.  He said that the injury may have been a few minutes later than 6.50 a.m.

18.     On being informed that his previous attendance at the gymnasium was on 24 November 2005, Mr Bauduccio expressed surprise as he believed he had attended more regularly.  He did not accept Mr Lenczner’s proposition that he had injured himself at the gymnasium rather than in the shower as a result of the period that had elapsed since he last attended.  Mr Bauduccio could not recall attending the gymnasium the morning after the injury but on being shown that he had signed in, agreed that he must have done so.

19.     On being further questioned about how he travelled to work, he said that he usually caught the 6.20 a.m. train which arrived at Flinders Street station at around 6.40 a.m.  He then walked for about 15 minutes to work.  If it rained, he took the tram from the station.  He agreed that he would not have time to go to the gymnasium and sign in at 7 a.m. in such a situation.  He conceded that he sometimes drove in to work, once the family had purchased a second car.  On these occasions, he parked near his workplace.  This would enable him to attend the gymnasium before work.  He could not recall whether he had driven in or taken the train on 13 December 2005. 

20.     Mr Lenczner suggested that Mr Bauduccio’s claim may have been fabricated due to other disputes he had on foot with his employer, and that was why there were inconsistencies in his evidence.  Mr Bauduccio denied this.  He said that his memory was not particularly good but he was adamant that he had a fall in the shower before he commenced work.  Notwithstanding Mr Bauduccio’s memory lapses, the Tribunal accepts that Mr Bauduccio had a fall in the shower before commencing work on 13 December 2005.  

Nature of the injury

21.     Two weeks before the injury, on 29 November 2005, Mr Bauduccio’s workstation and work habits were assessed by an occupational therapist.  This was organised by his employer because Mr Bauduccio had reported lower back discomfort.  Mr Andrew Henderson, occupational therapist, prepared a report dated 6 December 2005 which was received by the relevant section of the Department of Defence on 12 December 2005.  He also sent a copy to Mr Bauduccio.  Mr Henderson recommended a number of workplace changes including a new chair, changes in his daily routine, regular breaks and further keyboard training.  

22.     In describing Mr Bauduccio’s condition at that time, Mr Henderson stated:

…Mr Bauduccio indicated that he began to experience lower back discomfort 2-3 years ago, which he attributed to poor posture associated with being overweight at the time.  Mr Bauduccio reported that he has undergone chiropractic, physiotherapy and osteopathic treatment previously and was reportedly advised that he was suffering from “spinal misalignment”.

CURRENT PHYSICAL STATUS

Mr Bauduccio reported experiencing lower back pain associated with prolonged sitting greater than 10 minutes and referred leg pain to his toe on an intermittent basis.  Mr Bauduccio indicated that he has lost weight over the past 2-3 years and continues to exercise regularly by jogging and walking.  He stated that exercising does not exacerbate his symptoms at all.

Mr Bauduccio indicated that he is not undergoing regular treatment at present due to financial constraints.

APM contacted Mr Bauduccio’s Osteopath, Dr Phillip Princiotta on 6 December 2005, whom indicated that Mr Bauduccio has Piriformis syndrome and L5/S1 disc compression that presents as referred sciatic pain…

.

23.     On 13 December 2005, the date of the injury, Mr Bauduccio attended his general practitioner, Dr Umit Cenap.  Dr Cenap issued a medical certificate in which he stated that his patient had attended the clinic because of a medical condition and was unable to attend work on 13 December 2005.  On 29 December 2005, Dr Cenap signed a Victorian Workcover Authority Certificate of Capacity in which he stated that Mr Bauduccio had incurred a soft tissue injury of coccyx for which he was treated with Nsaid and by an osteopath and that he was expected to be fit for normal duties from 13 December 2005.   Dr Cenap also prepared a referral dated 29 December 2005 to Mr Bauduccio’s osteopath, Phillip Princiotta, stating that Mr Bauduccio needed some help to relieve his pain following an injury in the coccyx area at work on 13 December 2005.

24.     Dr Princiotta’s records indicate that Mr Bauduccio attended for treatment on 12 December 2005 (the day before the accident), 19 December 2005 and on four  occasions in January 2006.  Dr Princiotta’s notes of 12 December 2005 indicate that his patient was overall v/good. On 19 December 2005, he notes that the patient stated that he had an accident at work on 13 December 2005 when he tripped on a step in a shower at work and landed on his coccyx.  Dr Princiotta indicates that this resulted in pain in the buttock region.    His notes of the January 2006 appointments indicate improvement and by 30 January 2006, the notes indicate Mr Bauduccio is exhibiting no major symptoms. 

25.     On 22 June 2007, Mr Michael Fogarty, orthopaedic surgeon, provided a report to the respondent’s solicitor.  He examined Mr Bauduccio on 18 June 2007.   Mr Fogarty provided a history of low back pain from time to time.  He noted that Mr Bauduccio had undergone laparoscopic banding of his stomach in 2003 and that he had subsequently lost 70 kg in weight. Mr Fogarty indicated that the evidence before him suggested that Mr Bauduccio had sustained an injury on 13 December 2005 and that the injury was compatible with the circumstances described by Mr Bauduccio.  Mr Fogarty stated that he would have expected the effects of this injury to have ceased within three months of the injury.  He indicated that Mr Bauduccio was suffering from degenerative disc disease in the lumber spine especially at the lumbo-sacral level. He suggested that the injury on 13 December 2005 was likely to have aggravated the degenerative disc condition; but the effect would only have been temporary.  He stated that no treatment was required at the time of his report.

26.     The Tribunal is satisfied that Mr Bauduccio sustained a soft tissue injury as a result of slipping in the shower. 

Is Mr Bauduccio entitled to compensation?

27.     There is no disagreement between the parties that Mr Bauduccio could not officially commence work before 7 a.m.   He signed on at 7 a.m. on 13 December 2005.  He has given evidence, which the Tribunal has accepted, that the injury occurred before he signed in for work on that day.   Mr Bauduccio has also given consistent evidence that he was at his workplace at St Kilda Road when the injury occurred.

28. For an employee to have been entitled to compensation under s 6 of the Act, the injury had to have arisen out of, or in the course of his employment. At the time of the claim, an employee was entitled to compensation pursuant to s 6(1)(b)(ii) of the Act if he was travelling between work and home. Mr Bauduccio has given evidence that he had completed his journey to work at the time of the injury. The Tribunal is satisfied that he had arrived at his workplace. Therefore, he is unable to obtain compensation under that provision.

29. The only other possible provision applicable to Mr Bauduccio’s circumstances is s 6(1)(b)(i) of the Act, which concerns injuries which occur when an employee is at his place of work for the purposes of his employment or temporarily absent from the place of employment during an ordinary recess in that employment.

30.     There have been many cases with differing outcomes as to whether an employee qualified for compensation under this provision.  Each has turned on its own particular facts.   In Gregory v ComcareAustralia (1997) 72 FCR 196, the Federal Court determined that an injury that occurs in an interval between two discrete periods of work, even if the injury occurs at a place or in the course of an activity which the employer induced or encouraged the employee to spend the interval in or doing, will not be an injury which occurs in the course of employment. In the High Court case of Humphrey Earl Limited v Speechley (1951) 84 CLR 126, Dixon J stated (at 133):

…The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties…

31. Mr Bauduccio had already arrived at his workplace when he took a shower and sustained an injury. However, he had not commenced work as he was not entitled to do so prior to 7 a.m. He was not required to shower at the workplace as part of his administrative duties. It was his choice to wear a tracksuit to work and then shower and change at the office. Mr Bauduccio was between two discrete periods of work when the injury occurred. Mr Bauduccio had not commenced work on 13 December 2005 nor was he in a recess during the working day. Therefore, the Tribunal finds that Mr Bauduccio’s injury did not arise out of, or in the course of, his employment. He therefore does not meet the requirements of s 6 of the Act and is not entitled to compensation for the injury.

DECISION

32.     The Tribunal affirms the decision under review

I certify that the thirty–two [32] preceding paragraphs are a true copy of the reasons for the decision of Regina Perton, Member and Anne Shanahan, Member

(sgd)       Dianne Eva

Clerk

Date of hearing:  5 July 2007

Date of decision:  6 September 2007
Advocate for the applicant:           Self-represented

Counsel for the respondent:         Mr J Lenczner
Solicitor for the respondent:         Australian Government Solicitor