Blackwood v Ziebarth

[2016] ICQ 5

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Blackwood v Ziebarth [2016] ICQ 005

PARTIES:

SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR)

(appellant)

v
ROBERT ZIEBARTH

(respondent)

FILE NO/S:

C/2015/32

PROCEEDING:

Appeal

DELIVERED ON:

19 February 2016

HEARING DATE:

14 September 2015

MEMBER:

Martin J, President

ORDER/S:

Appeal dismissed.

CATCHWORDS:

WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISEASE OR DISABILITY – ARISING IN COURSE OF EMPLOYMENT – where the respondent says he was injured at home when he was hurrying to answer the mobile telephone provided by his employer – where the Regulator’s refusal of compensation was overturned in the Commission – where the Regulator appeals that decision – whether the Commission erred in defining the relevant ‘activity’, for the purpose of s 32(1) of the Workers’ Compensation and Rehabilitation Act 2003, as ‘the answering of the work mobile telephone’ and not the ‘running’ or ‘hurrying’ – whether the Commission erred in failing to provide adequate reasons for its decision

Workers’ Compensation and Rehabilitation Act 2003, s 32(1)

CASES:

Campbell v Australian Leisure & Hospitality Group Pty Ltd [2015] ICQ 016
Comcare v PVYW (2013) 250 CLR 246

Commonwealth Bank of Australia v Wark (1995) 22 AAR 181
Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473

APPEARANCES:

S P Gray, directly instructed for the appellant by the Workers’ Compensation Regulator

M D Glen, instructed by Lehmann Featherstone, Solicitors, for the respondent

1. Mr Ziebarth says that he was injured at home when he was hurrying to answer the mobile telephone provided by his employer. The Regulator’s refusal of compensation was overturned in the Commission.

2. The parties agreed on a statement of facts which, so far as they are relevant, were:

   (a)at all material times Mr Ziebarth was a worker as defined in the Workers’ Compensation and Rehabilitation Act 2003 (the Act);

   (b)it was a term of his contract of employment that he make himself available to be on-call from time to time;

   (c)he was supplied with a work telephone for the purpose of carrying out his employment duties, including those employment duties required of him while on-call;

   (d)at all material times he was on-call;

   (e)at all material times, and pursuant to the terms of his contract of employment, he was responsible for maintenance and repair issues associated with his employer’s fleet of trucks.

3. Mr Ziebarth was employed as the Fleet Service Manager at the Tully Depot of Blenners Transport Pty Ltd in Cairns. His injury came about in a manner described by the Deputy President as follows:

   “[7]  The appellant told the Commission that he was at his Mission Beach home on Thursday, 21 March 2013. At about 10.00 pm, the appellant went for a shower. Whilst showering, the appellant heard his work mobile telephone ringing. He knew it was his work mobile telephone because of its distinctive ring tone. The mobile telephone was located on his bedside table.  He told the Commission:

   ‘I moved out of the shower through the gap and into the glass and headed towards the door. And…