CHERIE CHAPMAN and COMCARE

[2009] AATA 430

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 430

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3259

GENERAL ADMINISTRATIVE DIVISION		)
Re		CHERIE CHAPMAN

Applicant

And COMCARE

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date15 June 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

..................[Sgd]..................

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Claim for medial meniscal tear of right knee – Injury sustained while employee temporarily absent from workplace during an ordinary recess – Injury did not arise out of or in the course of employment – Decision affirmed.

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 6(1)(b), 6(1)(c)

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)

REASONS FOR DECISION

15 June 2009 Dr P McDermott, RFD, Senior Member  

INTRODUCTION

1.      Ms Cherie Chapman is an employee of Centrelink.  She was injured on 14 February 2008 whilst descending a flight of stairs in a shopping centre in which the Centrelink office where she works is located.  She was on a recess break from her work when she was injured.  I have to decide whether Ms Chapman is entitled to receive compensation for her injury.

PRIOR DECISIONS

2.      On 9 May 2008, the respondent rejected Ms Chapman’s claim for compensation.  The respondent affirmed this determination on 11 June 2008 after receiving a request for reconsideration from Ms Chapman. 

APPLICABLE LEGISLATION

3.      The legislation that I have to administer is the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). I have to determine whether the injury of Ms Chapman should be treated under s 6 of the Act as having arisen out of, or in the course of, her employment.

4. I have to consider whether the injury was sustained when Ms Chapman was at her place of work, including during an ordinary recess, for the purposes of her employment: s 6(1)(b) of the Act.

5. If I decide that the injury was sustained when Ms Chapman was not at her place of work, I must then consider whether she satisfies s 6(1)(c) of the Act. This requires that if she was temporarily absent from her place of work, she must have been undertaking an activity either associated with her employment or at the direction or request of the Commonwealth or a licensee.

MEDICAL EVIDENCE

6.      I have reviewed all of the medical reports that have been made in relation to the injury of Ms Chapman.  A report of Dr Mark Burgin dated 30 April 2008 is in evidence before me: T16, folio 47.  In that report, Dr Burgin diagnosed Ms Chapman as having a medial meniscal tear of the right knee.  I am satisfied that Ms Chapman sustained this injury to her right knee.

CONSIDERATION

Was the injury sustained at Ms Chapman’s place of work?

7. In evidence before me is the lease of the Centrelink office where Ms Chapman works. The office is located at the Australia Fair Shopping Centre in Southport, Queensland. Under the lease, the office is on part of Level 9 of that shopping centre. Ms Chapman gave evidence that she was injured whilst descending a flight of stairs in the shopping centre leading to Level 2. I do not consider that this injury occurred at Ms Chapman’s place of work. The term “place of work” is defined in s 4 of the Act to include “any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment”. There is no evidence before me that Ms Chapman was required to work outside the Centrelink office on Level 9. It is clear that Ms Chapman’s duties of entering data on a computer had to be performed at her desk in the office. It is for this reason that I find the injury was sustained when Ms Chapman was not at her place of work. In view of this finding, there can be no liability under s 6(1)(b) of the Act even though Ms Chapman gave evidence before me that she was having a recess in her employment at the time the injury occurred.

Was Ms Chapman temporarily absent from her place of work undertaking an activity associated with her employment?

8. I will now consider whether Ms Chapman satisfies s 6(1)(c)(i) of the Act. This provision requires her to have been temporarily absent from her place of work yet undertaking an activity associated with her employment. The evidence of Ms Chapman is that she went for a walk downstairs on 14 February 2008 because she had been working for close to five hours without a break. It is clear from the evidence of her manager that she could have had such a break either in a recess centre at her workplace or on a veranda. In cross-examination, Ms Chapman stated that she did not choose to use the veranda for her recess as some employees smoked there. I accept Ms Chapman’s evidence that the injury occurred when she was on a recess. I also accept her evidence that she was not purchasing her lunch when she was injured; this evidence is supported by the email of Mr Bill Rogers dated 10 April 2008: Exhibit 10. However, the explanatory memorandum for the Bill of the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 at p 6 states: “The amendments will provide that injuries incurred while an employee was temporarily absent from the workplace during an ordinary recess in employment will generally not be injuries arising out of, or in the course of, employment”. It is for this reason that I conclude there is no liability under s 6(1)(c)(i) of the Act.

Was Ms Chapman temporarily absent from her place of work undertaking an activity at the direction or request of the Commonwealth?

9. I will next consider whether Ms Chapman satisfies s 6(1)(c)(ii) of the Act. This provision applies if she was temporarily absent from her place of work while undertaking an activity at the direction or request of the Commonwealth or a licensee.

10.     In evidence, Ms Chapman stated that the reason she walked down the stairs was to comply with a direction of an “ErgoMinder” screen that popped up on her computer screen.  The text of the message from the ErgoMinder screen was admitted in evidence before me: Exhibit 2. The message contained the advice: “Walk up the stairs sometimes instead of using the elevator, worse still, make it a habit!”  I do not regard this message to be a direction or request from the Commonwealth.  There was certainly no evidence before me that any person in authority over Ms Chapman had issued any such direction or request for her to use the stairs.

DECISION

11.     I affirm the decision under review.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: .............................[Sgd]............................................
  Mátyás Kochárdy, Research Associate

Date of Hearing  21 April 2009
Date of Decision  15 June 2009
Applicant was self-represented  
Counsel for the Respondent     Mr J Pappas 
Solicitor for the Respondent     Australian Government Solicitor