Bina v ISS Property Services Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Bina v ISS Property Services Pty Limited [2013] NSWWCCPD 72
APPELLANT:	Ana Filicia Bina
RESPONDENT:	ISS Property Services Pty Limited
INSURER:	Self-insured
FILE NUMBER:	A1-13437/12
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	17 September 2013
DATE OF APPEAL DECISION:	19 December 2013
SUBJECT MATTER OF DECISION:	Journey claims; meaning of “real and substantial connection” s 10(3A) of the Workers Compensation Act 1987; injuries arising out of employment; principles of statutory interpretation
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Steve Masselos & Co
Respondent:	Bartier Perry
ORDERS MADE ON APPEAL:	1.       The Arbitrator’s determination of 17 September 2013 is confirmed. 2.       No order as to costs of this appeal.

BACKGROUND TO THE APPLICATION

1. The appellant, Ana Filicia Bina is employed by the respondent, ISS Property Services Pty Limited (ISS), as a cleaner at Guildford West Public School (the school). At the time of her injury she worked a broken or split shift. Her normal hours of work were 5.30 am-8.00 am and 3.00 pm-6.30 pm on weekdays.

2. Ms Bina regularly drove a motor vehicle to and from her place of employment. At 8.20 am on 27 July 2012 she was driving a motor vehicle from the school to her home in Fairfield Heights, when her vehicle was involved in a collision with another vehicle at the intersection of Polding Street and The Horsley Drive, Fairfield. Ms Bina suffered multiple injuries as a result of the accident. As a consequence of those injuries she has been unable to return to her employment as a cleaner.

3. Ms Bina alleged that she was required to use her own transport to travel to and from work because of a lack of access to public transport to travel between her home and her place of employment. Ms Bina made a claim for weekly compensation benefits from 27 July 2012.

4. On 2 October 2012, ISS issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It declined liability for the following reasons:

   (a)     the injury did not arise out of or in the course of employment (ss 4(a) and 4(b) of the Workers Compensation Act 1987 (the 1987 Act));

   (b)     the employment was not a substantial contributing factor to the injury (s 9A of the 1987 Act);

   (c) section 10(1) of the 1987 Act does not deem the injury to have arisen out of or in the course of employment;

   (d)     the injuries sustained in the motor vehicle accident on 27 July 2012 had no real and substantial connection to Ms Bina’s employment (s 10(3A) of the 1987 Act);

   (e)     that Ms Bina was not incapacitated as alleged (s 33 of the 1987 Act), and

   (f)      liability for medical and related expenses was denied (s 60 of the 1987 Act).

5. On 19 October 2012, Ms Bina lodged an Application to Resolve a Dispute in the Commission.…