Borges v Woolworths Group Limited
[2021] NSWPIC 22
•15 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Borges v Woolworths Group Limited [2021] NSWPIC 22 |
| APPLICANT: | Lunia Borges |
| RESPONDENT: | Woolworths Group Limited |
| MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 15 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for the cost of medical treatment for injury sustained on a journey, pursuant to section 10(3)(c) of the 1987 Act, after the applicant had undergone treatment for an accepted work injury; application of section 10(3A) of the 1987 Act; Australia and New Zealand Banking Group v Khullar [2020] NSWWCCPD 3 and Mission Australia v Eves [2020] NSWWCCPD 49 considered; Held- there was a real and substantial connection between the applicant’s employment and the accident out of which the injury arose; award for the applicant for the cost of C5/6 anterior cervical discectomy and fusion and incidental costs; no order made for payment of Medicare as Notice has expired. |
| DETERMINATIONS MADE: | 1. That the respondent is to pay, pursuant to section 60 of the Workers Compensation 2. That no order is made in respect of the Medicare Notice of Past Benefits. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Lunia Borges (Ms Borges) is employed by the respondent, Woolworths Group Limited (Woolworths) as a store person.
Ms Borges sustained an injury to her right elbow arising out of or in the course of her employment with the respondent on 7 February 2017. The respondent has accepted liability for that injury.
On 17 July 2017, the applicant sustained injury to her cervical spine, both shoulders and lower back when she was involved in a motor vehicle accident while driving home from a physiotherapy appointment. She was attending the appointment for treatment of her right elbow injury.
The applicant claims pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) the cost of surgery to her cervical spine; associated costs; and Medicare Charge.
The applicant completed a Worker’s Injury Claim Form on 14 March 2019. She claimed that on 17 July 2017 she was driving home from a physiotherapy appointment to treat a work-related injury when she was involved in a motor vehicle accident. Her car was struck on the right side by another vehicle. She sustained injuries to her cervical spine, bilateral shoulders and upper back.
The applicant also completed an Other Injury Claim Form on 14 March 2019. She claimed that her usual route for the journey was “One Point Health Physio to Home”; and she did not divert from her usual route or interrupt her journey. The driver of the vehicle that struck her vehicle was at fault and the accident was reported to the police, but they did not attend. The applicant had made a CTP claim.
By letter dated 30 April 2019, the applicant’s solicitors notified Employers Mutual Limited, as agent for Woolworths Group (EML) of her claim, relying on section 10(3)(c) of the 1987 Act; and submitting that there was a real and substantial connection between her employment and the accident, so that section 10(3A) of the Act was satisfied.
On 8 May 2019, EML issued the applicant with a dispute notice pursuant to section 78 of the Workplace Injury Management andWorkers Compensation Act 1998 (the 1998 Act).
EML maintained that, while the applicant relied on section 10(3)(c) of the 1987 Act, she had not met the “pre-condition” of section 10(3A) of the Act. EML stated that there was no evidence of any real and substantial connection between the applicant’s employment and the accident, including the absence of evidence of any real and substantial connection between her prior work injury and the accident. It stated that simply being on a journey was not sufficient to satisfy section 10(3A). Liability for medical and related expenses was disputed on the basis that they were not “reasonable and necessary” [sic] and did not arise from any work injury.
On 12 May 2020, the applicant’s solicitors notified EML of a claim for the cost of C5/6 anterior cervical discectomy and fusion surgery, performed by Dr Peter Khong on 3 September 2019.
On 19 May 2020, EML sent an email to the applicant’s solicitors, advising that it relied on the section 78 notice dated 8 May 2019 in response to the claim for the cost of surgery.
The applicant lodged an Application to Resolve a Dispute (the Application) on 17 November 2020. She claims the amount of $16,357 in respect of C5/6 anterior cervical discectomy and fusion, and incidental costs, as performed by Dr Khong on 3 September 2019; and medical expenses in accordance with a Medicare Notice of Charge.
The respondent lodged its Reply on 8 December 2020.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) Whether section 10(3A) of the 1987 Act applies to the journey in the course of which the applicant sustained injury.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The respondent does not dispute that the medical treatment in respect of which the applicant claims was reasonably necessary as a result of the motor vehicle accident on 17 July 2017.
The parties have agreed to the determination of the matter without a conference or formal hearing.
The applicant was directed to lodge and serve written submissions on or before 13 January 2021. She lodged her submissions on 12 January 2021.
The respondent was directed to lodge and serve written submissions in reply on or before 3 February 2021. It lodged its submissions on 3 February 2021.
The applicant was directed to lodge and serve any further submissions on which she sought to rely by 17 February 2021. She lodged further submissions on 16 February 2021.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(b) The Application and attached documents; and
(c) Reply and attached documents.
FINDINGS AND REASONS
Evidence of the applicant, Lunia Borges
The applicant’s statement is dated 16 November 2020.
Ms Borges states that she sustained a work-related injury to her right elbow on 7 February 2017. She was unhooking a “pogo stick” from inside a semi-trailer when a second pogo stick fell and struck her over the outer aspect of her right elbow.
The applicant lodged a workers’ compensation claim and liability was accepted by EML. It paid for treatment such as physiotherapy.
On 17 July 2017, the applicant had a physiotherapy appointment at One Point Health, 510-536 High Street, Penrith, at 3:30pm. The appointment was for treatment for her right elbow injur and was approved and paid for by the workers’ compensation insurer.
The applicant’s appointment finished just before 4pm. The only reason she was at Penrith was to attend physiotherapy. After picking up her car, she took her usual route, heading home to Kingswood.
The traffic was heavier than usual because it was late afternoon and school was starting the week after. There were many parents and children “out and about”, such as shopping at Westfield Penrith, at 585 High Street, Penrith.
The applicant went onto Riley Street, Penrith and was in the middle lane, which allows vehicles to turn left or right into Jane Street. The right lane was only allowed to turn right into Jane Street.
The traffic light was red, so the applicant stopped at the intersection. When the light turned green, she proceeded through the intersection, intending to turn right into Jane Street to head home. Suddenly, the vehicle on her right, which was in the right lane, cut across into her lane while attempting to turn left. It collided with the right side of her car and did not stop. The driver reversed and drove away. The applicant reported the accident to the police.
That evening, the applicant felt pain to her neck and shoulders. Her neck was particularly sore, and she could feel it being very tender. The next morning, her neck was very stiff and it was difficult for her to turn her head. She went to work but the pain and stiffness in her neck gradually worsened. She reported her injury to the union delegate and was sent to the respondent’s general practitioner.
The applicant’s symptoms worsened, and she consulted her physiotherapist, Mr Ryan Heuston and Dr Eric Lim, general practitioner. She had MRI of her neck and continued with physiotherapy, swimming, and walking.
As her symptoms stayed relatively the same, the applicant was referred to orthopaedic surgeon, Dr Bisham Singh, whom she consulted on or about 1 November 2018. He referred her for MRI of her neck. On 10 January 2019, he advised her that she required cervical fusion at C3/4 and should trial injections to the right side of her neck.
The applicant informed her general practitioner, Dr Sebastian Calvache-Rubio on 26 March 2019 that her (CTP) insurer had denied liability for the surgery. He referred her to neurosurgeon, Dr Khong, for a second opinion.
Dr Khong arranged for the applicant to have a bone scan on 4 June 2019. He advised her that the next reasonable step was surgery, but given the bone scan, it would be better to do a fusion at C5/6, rather than C3/4.
The applicant was placed on the public waiting list and underwent surgery at St George Public Hospital on 3 September 2019. She was discharged three days later. Part of the fees were put through Medicare, but there is an outstanding tax invoice of $16,357 owing to
Dr Khong, as both the CTP and workers’ compensation insurer refused to pay it.
Medical Evidence
As the respondent does not dispute that the medical treatment in respect of which the applicant claims was reasonably necessary as a result of the motor vehicle accident on 17 July 2017, it is not necessary to review all the medical evidence.
One Point Health - Physiotherapist
The clinical records of the practice show that the applicant attended appointments on 19 June 2017 at 4pm; 30 June 2017 at 4pm; 5 July 2017 at 3:30pm; and 17 July 2017, for an appointment with Ms Kristy Edwards at 3:30pm. The records for that day were created at 3:52pm and updated at 3:56pm.
Dr Peter Khong - Neurosurgeon
The Operation Report dated 3 September 2019 confirms that the applicant underwent C5/6 anterior cervical discectomy and fusion, performed by Dr Khong.
Dr Khong reported to Dr Lim on 4 October 2019 that the applicant was progressing well. Her pre-operative neck pain had improved substantially. She still had some tenderness from the surgery. Her left arm and hand symptoms continued to improve.
Dr Khong reported on 4 May 2020 that the applicant’s neck injury was a direct result of the motor vehicle accident, when she sustained an acute exacerbation of degenerative changes at C5/6, causing neck and right arm pain and numbness. The need for the surgery was also a direct result of the motor vehicle accident.
SUBMISSIONS
Applicant
The applicant submits that on 7 February 2017 she suffered an injury to her right elbow at work. Liability for the injury has been accepted by the workers’ compensation insurer.
As part of her treatment, the applicant attended physiotherapist, Kristy Edwards, at her rooms in High Street, Penrith. At the time, the applicant lived in Park Avenue, Kingswood. The sole purpose of the journey was to get treatment. The accident happened while she was travelling home from the treatment at about 4pm. She says at that time there was increased traffic due to many parents and children being out shopping in the week before school returned from holidays.
The accident occurred when another driver attempted to make a left-hand turn from the right-hand lane at an intersection. The driver left the scene, so it is not known why he attempted to make the turn.
There is no dispute that the injury occurred on a periodic journey within the meaning of section 10(3) of the 1987 Act, being a journey from a place of treatment to the applicant’s place of abode.
In Australia and New Zealand Banking Group v Khullar [2020] NSWWCCPD 3 (Khullar), Deputy President Snell considered a case with similar facts. Ms Khullar suffered a motor vehicle accident while travelling home from an appointment with an ophthalmologist at 7:30am [sic 7:20am], in what was accepted to be peak hour traffic.
Snell DP considered the authorities with respect to section 10(3A) of the 1987 Act. He observed that in Bina v ISS Property Services Pty Ltd [2013] NSWWCCPD 72 (Bina), President Keating held that the mere fact that the worker is on a periodic journey does not establish a real and substantial connection. The connection does not, however, need to be causal.
Snell DP concluded on the facts in Khullar that:
“The mere act of driving on one of the journeys falling within s 10(3)(c) does not of itself provide the necessary connection. Consideration of whether s10(3A) is satisfied depends on whether there was a real and substantial connection between the worker’s employment and the motor vehicle accident on 7 June 2018. There is no issue that the attendance on Dr Ogane on that morning was reasonably necessary treatment for the employment injury suffered on 21 May 2018. Although the attendance was for the purpose of treatment, it also by its very nature would be relevant to management of the worker’s time off and return to work. The appointment put the worker on the road at a time and place where she would not otherwise have been. This included driving in peak hour traffic at about 7.20 am. There are similarities, as the worker submits on appeal, between this factual situation and that in Wickenden. In that matter Roche DP described Ms Wickenden ‘confronting cattle on a country road in the dark’ as ‘a circumstance to which Ms Wickenden was exposed because of her employment’.”
From Snell DP’s comments, it can be concluded that if a worker’s need for treatment of a compensable injury places her on a road at a time and place where she would not otherwise have been, then that can be sufficient to satisfy the requirement for a real and substantial connection between the employment and the injury.
In this case, it was only the need for treatment of her accepted elbow injury that placed the applicant on a road at the time and place that exposed her to the injury that occurred. Similar to Khullar, it also placed her on the road at a busy time. She was also on a different route to any journey to work, her employment being at Erskine Park.
The provisions of section 10(3A) were further considered in Mission Australia v Eves [2020] NSWWCCPD 49 (Eves). In that matter, the worker was injured in a car accident while travelling from Bourke to Cobar. She was on the journey solely because of the effects of a work-caused psychological injury, travelling to her mother’s place to get support. The arbitrator found the worker was on the journey because of her distressed state when leaving work and would not otherwise have been on the journey.
On appeal, Wood DP found no error by the arbitrator. She found that the arbitrator had considered the principles and applied them. She said:
“The Arbitrator accepted the respondent’s submissions that the respondent would not have been on that journey but for the state of distress she was in and it was irrelevant as to whether the respondent’s distressed state was a compensable injury or the appellant’s defence under s 11A of the 1987 Act was made out
…At the end of the day, the Arbitrator reached a conclusion by applying the principles established in Bina to the facts of this case without the benefit of any submissions that were contrary to the conclusions he reached. In the circumstances, considering the facts of this case, the evidence, and reading the Arbitrator’s reasons as a whole, his reasons were sufficient.”
The principle to be derived from Khullar and Eves is that the test in section 10(3A) is satisfied if the worker’s employment, and in particular any injury or condition caused by employment, places the worker at the scene of the accident at a time and place that they would not otherwise be at. If employment has meant that the worker is exposed to a risk of injury to which they would not otherwise be exposed, then the test is satisfied.
In this case, the uncontroverted evidence is that the necessary treatment for the work caused elbow injury was the sole reason the applicant was at the intersection of Riley Street and Jane Street, Penrith shortly after 4pm on 17 July 2017; and exposed to the risk of injury created by the actions of the other driver.
The requirements of section 10(3A) are satisfied and the applicant is entitled to an award in her favour.
Respondent
The respondent concedes:
(a) The applicant suffered an injury to her right elbow at work on 7 February 2017.
(b) The applicant resided at 13/65-66 Park Avenue, Kingswood on 17 July 2017.
(c) The applicant attended a physiotherapy appointment with Kirsty [sic] Edwards from One Point Health at 510-536 High Street, Penrith on 17 July 2017 at 3:30pm.
(d) The appointment was to treat the workplace injury to the right elbow and was paid for by the respondent.
(e) The applicant was involved in a motor vehicle accident at the corner of Riley Street and Jane Street, Penrith at approximately 4pm on 17 July 2017.
(f) The route the applicant travelled after the appointment was likely the most direct route to her home.
(g) The applicant’s attendance at One Point Physiotherapy was on a different route to any journey to work at Erskine Park.
The respondent disputes that there was a “real and substantial connection” to the “employment and the accident”.
The respondent disputes the applicant’s allegations as to “heavier than usual” traffic due to the following:
(a) The traffic at 4pm would usually be light due to most workers ceasing work at 5pm.
(b) Traffic is usually much lighter at 4pm during school holidays due to families holidaying; not needing to perform school “pick-ups”; and not needing to take children to after school activities.
(c) Following the completion of term 2, the school holidays were from 1 July 2017 to 17 July 2017. The applicant’s allegations of “heavier than normal” traffic due to parents and children shopping is unlikely as a period of 16 days of holidays in the middle of the year would not require new school supplies; school children would be wearing their “winter uniform” in term 2 and 3 and as such, there would be no requirement to purchase a new uniform for the commencement of term 3; and most public and private school students purchase school uniforms from the school campus and as such, the need to attend Westfield for school supplies is unlikely.
(d) The accident occurred on 17 July 2017 and the New South Wales school term 3 commenced on 18 July 2017. The allegation that school started “next week” is inaccurate.
(e) The applicant’s allegations of heavy traffic near the traffic [sic: accident] site are contradicted by her statement: “The traffic light was red, so I stopped my motor vehicle at the intersection and waited” and “suddenly, the vehicle on my right side, who was in the right lane cut across into my lane whilst attempting to turn left…”
If the traffic was “heavier than usual” the applicant would not have been able to pull up at the intersection of Riley Street and Jane Street. She would likely have queued at the intersection behind traffic. Similarly, the offending vehicle would not have pulled up at the intersection of Riley and Jane Streets.
There should be no inference drawn that the traffic was “heavier than usual” due to the other alleged facts: G v H [1994] HCA 48 (per Brennan and McHugh JJ).
If the Commission accepts the applicant’s evidence that the “traffic was heavier than normal” at the time of the accident, an inference should be drawn that she would travel this road frequently to be able to compare the traffic on the day of the accident to “normal traffic”. Therefore, there is no “real and substantial connection” to employment as she would frequently travel near the accident site.
The facts of this matter are differentiated from the decision in Khullar as follows:
(a) Ms Khullar’s accident occurred at 7:20am, which would be peak hour traffic. The applicant’s accident [occurred] at 4pm, which was a relatively quiet time for traffic.
(b) There is no evidence the applicant would not normally be on the road at 4pm. In Khullar it was concluded that “the worker would not normally have been on the road at that time if not for the above sequence of events”.
(c) There is no evidence from the applicant that the physiotherapy appointment at 4pm was arranged “to facilitate her attendance at work on time”.
(d) There is no evidence from the applicant that the offending driver caused the accident due to rushing in peak hour. The decision in Khullar states: “the woman driving the [car] apologised for having collided with me and told me that she was in a rush to get to work after dropping her kids to childcare…”
Whether the test in section 10(3A) is satisfied involves “a question of fact, applying the words of the provision, in a common sense and practical manner in each case”: Bina.
Noting the facts of this case are differentiated from Khullar, common sense and practicality does not support a finding that there is a “real and substantial connection between the employment and the accident”.
Applicant in Reply
The applicant submits that the respondent seeks to dispute the evidence that at the time of the accident the traffic was heavier than usual. Its submissions depend on a number of assertions that are not supported by the evidence.
It is asserted that traffic at 4pm would be light because most workers finish work at 5pm. No evidence is presented in support. The applicant accepts that some office workers finish work at 5pm. However, that does not constitute the majority of workers. Most factory workers and tradespeople finish work at 3:30pm, which would place many of them on the road at 4pm. Many workers have flexible arrangements to allow them to adjust their working hours. In the absence of evidence there is no basis for the assertion made by the respondent.
The respondent’s submissions about whether parents and children would be shopping is also speculative and not supported by the evidence. There can be reasons why people would be shopping other than to purchase a school uniform. The accident happened on the last day of school holidays and therefore represented the last opportunity for parents to take their children shopping before school recommenced. Such shopping trips can be for many things and are not restricted to things necessary for the commencement of the new school term.
The relevant matter is that the traffic was heavier than usual. This is to be understood that it was heavier at 4pm than at some other times of the day. It may also have been heavier than the usual 4pm traffic. The reason why the traffic was heavier is ultimately immaterial. The relevant fact is that the applicant was only on the road at that time because of her work-related injury.
The respondent’s submission that if the traffic was “heavier than usual” the applicant would not have been able to pull up to the intersection of Riley Street and Jane Street, but would be likely to have queued at the intersection; and the offending vehicle would not have pulled up to the intersection, is both speculative and illogical. Regardless of the traffic, there is no reason why the applicant could not be the first car in the queue at the traffic lights. Logically, there is always a first car in the queue, regardless of the amount of traffic. Similarly, the offending vehicle could also be at the same intersection and be the first car in the lane to the right. The fact that the other vehicle attempted to force its way into the applicant’s lane is consistent with there being other traffic. Otherwise, he could have simply let the applicant pass and crossed behind.
With respect to the submission that the applicant drives the road at other times, it is immaterial whether she did so. The issue in this case is why she was at the intersection at the time she was.
The respondent seeks to distinguish the facts in Khullar. The applicant responds as follows:
(a) There is no basis for asserting that the accident occurred in light traffic.
(b) The applicant gives unequivocal evidence that the only reason she was on the road at that time was because of the physiotherapy appointment.
(c) It is immaterial whether the time of the appointment was to facilitate the applicant’s attendance at work. The principle is that she was on the road at that time to receive treatment for a work-related injury. Such treatment was to facilitate a return to work.
(d) Because the other driver left the scene, there is no direct evidence that the traffic conditions contributed to the accident. For the reasons above, an inference may be drawn that the traffic conditions contributed to the behaviour of the other driver. In any event, it is not necessary that the traffic conditions in fact contributed to the occurrence of the accident. The significant factor is that the work-related injury placed the applicant at the scene of the accident when she would not otherwise have been at that place and exposed her to the risk of injury that in fact materialised.
SUMMARY
Section 10 of the 1987 Act relevantly provides:
(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
…
(3) The journeys to which this section applies are as follows—
…
(c) a journey between the worker's place of abode or place of employment and any other place, where the journey is made for the purpose of obtaining a medical certificate or receiving medical, surgical or hospital advice, attention or treatment or of receiving payment of compensation in connection with any injury for which the worker is entitled to receive compensation,
…
(3A) A journey referred to in subsection (3) to or from the worker's place of abode is a journey to which this section applies only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.
…”
It is not in dispute that the applicant sustained injury to her cervical spine when she was involved in a motor vehicle accident while driving home from undergoing physiotherapy to treat an injury to her right elbow. The injury to her elbow arose out of or in the course of her employment with the respondent. The applicant was therefore on a “journey”, as defined in section 10(3)(c) of the 1987 Act when the injury to her cervical spine occurred. Pursuant to section 10(1), the injury was one that arose out or in the course of her employment.
Pursuant to section 10(3A) of the 1987 Act, section 10(3) applies only if there is a real and substantial connection between the applicant’s employment and the accident out of which her injury arose.
In Khullar, Snell DP noted that while there had been a number of Presidential decisions dealing with section 10(3A) of the 1987 Act, none had been in the context of a journey to which section 10(3)(c) applies. Khullar was the first such case.
The applicant relies on the decisions in Khullar and Eves. She submits that the principle derived from those cases is that the test in section 10(3A) of the 1987 Act is satisfied if the worker’s employment, and in particular any injury or condition caused by employment, places her at the scene of the accident at a time and place that she would not otherwise be. If employment has meant that she is exposed to a risk of injury to which she would not otherwise be exposed, the test is satisfied.
In Khullar, Snell DP referred to the decisions of President Keating DCJ in Bina; and Roche DP in Singh andSingh t/as Krambach Service Station v Wickenden [2014] NSWWCCPD 13 (Wickenden).
In Wickenden, Roche DP said that the test in section 10(3A) was not necessarily a causal test, and certainly did not require that employment be the sole cause of the accident.
Snell DP also referred to the decision of Roche DP in Alexander and Alexander as legal personal representatives of the Estate of Hugh Alexander v Secretary, Department of Education and Communities [2015] NSWWCCPD 41 (Alexander).
In Alexander, Roche DP said:
“The test in s 10(3A) is whether there is a real and substantial connection between the employment and the accident or incident out of which the personal injury (or death) arose. That test is always fact sensitive.” (emphasis in original).
Snell DP noted in Khullar [46] that in Bina, President Keating DCJ drew the following conclusions from the construction of section 10(3A):
(a) a substantial connection is one “of substance”;
(b) “employment” in section 10(3A) is the same as in section 9A of the 1987 Act, that is, it is the activities of, or incidental to the employment, as opposed to the (mere) fact of being employed;
(c) the mere fact that a worker must travel to and from work is insufficient to establish a real and substantial connection between the employment and the accident;
(d) it is appropriate to consider the meaning of “substantial connection” and “employment” by reference to the interpretation of those words in section 9A and section 4 of the 1987 Act, respectively. This may involve a causal relationship between the employment and the accident, but that is not necessarily so;
(e) the act of driving to or from work, without more, does not provide a real and substantial connection between employment and an accident;
(f) the purpose of the provision is to ensure that injuries received in the circumstances provided for are injuries that are deemed to arise out of or in the course of employment and compensation is payable accordingly. The subsection will be satisfied depending on the facts, when there is a real and substantial connection between some feature of what the worker is reasonably required, expected or authorised to do, by reason of his or her employment, and the accident or incident out of which the personal injury arose, [emphasis added] and
(g) whether, and in what circumstances, section 10(3A) will be satisfied will be a question of fact, applying the words of the provision, in a commonsense and practical manner in each case.
Ms Borges sustained a work-related injury to her right elbow on 7 February 2017; and on 17 July 2017 she attended a physiotherapy appointment in Penrith, to obtain treatment for that injury. She was at that time residing in Kingswood. She sustained injury to her cervical spine when she was involved in a motor vehicle accident on her way home after receiving treatment. The respondent concedes that it is likely she was taking the most direct route to her home; and her attendance at the physiotherapist involved her taking a different route from any journey she would have taken to her workplace at Erskine Park.
The applicant has given evidence that there was heavier than usual traffic on 17 July 2017; and she has provided reasons why she believes that to be the case.
The respondent seeks to distinguish Khullar on the basis that the applicant has not established that the traffic was heavier than usual on the date of the injury.
The applicant does not accept this submission, but submits that, in any event, it is not necessary that the traffic conditions in fact contributed to the occurrence of the accident. She submits that the significant factor is that the work-related injury placed her at the scene of the accident, where she would not otherwise have been. She was therefore exposed to the risk of injury that in fact materialised.
I accept the applicant’s submission. The fact that it was accepted in Ms Khullar’s case that she was driving in peak-hour traffic at the time of her accident does not mean that the applicant must establish the same circumstances to succeed in her claim.
Snell DP referred in Khullar [56] to the decision of the arbitrator, who said that “…the real and substantial connection between the employment and the injury caused by the motor vehicle accident was because treatment for her injured eye required Ms Khullar to travel from her home to the rooms of Dr Ogane on a journey that she would not otherwise have made, at an hour when she would not otherwise have been at the intersection where the collision occurred”.
I refer to the applicant’s submissions at paragraph 47, quoting Snell DP’s conclusions in Khullar. The fact that it was accepted that Ms Khullar’s journey took place in peak hour traffic was not determinative of her claim. DP Snell said her appointment put her on the road at a time and place where she would not otherwise have been; and this included driving in peak hour traffic.
The applicant’s physiotherapy appointment put her on the road at a time and place where she would not otherwise have been. She had no other reason to be in Penrith, either at that time or any other time. She was “reasonably required, expected or authorised” to attend the appointment “by reason of … her employment” (Bina). As was the case in Khullar, it may reasonably be inferred that the treatment she was undergoing was relevant to the management of her time off and return to work.
In any event, I accept that the applicant was able to give evidence about traffic conditions at the time of her accident. She stated that it was “heavier than usual”. She has made assumptions about why this may have been the case. There is no evidence to confirm her assumptions. However, there is evidence that she had attended physiotherapy at Penrith on other occasions, at about the same time.
The records of One Point Health show that the applicant had previously attended physiotherapy appointments on 19 June 2017 at 4pm; on 30 June 2017 at 4pm; and on 5 July 2017 at 3:30pm. She therefore had some experience of the traffic conditions in Penrith at about 4pm.
I do not accept, as the respondent submits, that if the applicant had travelled the route frequently, there was no “real and substantial connection” to her employment. On the day in question, her sole reason for being at the scene of the accident was because she had been undergoing medical treatment for her work-related injury. As she submits, it is immaterial whether or not she had travelled the route frequently. The issue is why she was at the intersection at the time she was.
For the above reasons, I determine that the applicant sustained injury to her cervical spine on 17 July 2017, while on a journey within the meaning of section 10(3)(c) of the 1987 Act; and there was a real and substantial connection between her employment and the accident out of which the injury arose, in accordance with section 10(3A) of the Act.
The respondent is to pay, pursuant to section 60 of the 1987 Act, the amount of $16,357 in respect of the cost of surgery, being C5/6 anterior cervical discectomy and fusion and incidental costs, performed by Dr Khong on 3 September 2019.
The Medicare Notice of Past Benefits expired on 5 January 2020. I therefore decline to make any order in respect of the Notice.
Kerry Haddock
MEMBER
15 March 2021
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