Chubb Security Australia Pty Ltd v Annette Treverrow

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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STATUS: Confirmed by Appeal: Chubb Security Australia Pty Ltd v Treverrow [2004] NSWCA 344, (2006) 5 DDCR 1

CITATION:	Chubb Security Australia Pty Ltd v Annette Treverrow [2003] NSW WCC PD 17
APPELLANT:	Chubb Security Australia Pty Ltd
RESPONDENT:	Annette Treverrow
INSURER:	NRMA Workers Compensation (NSW) Pty Ltd
FILE NO:	WCC2411-2002
DATE OF DECISION:	20 June, 2003
PRESIDENTIAL MEMBER:	Deputy President, Gary Byron
DECISION UNDER APPEAL:	Decision by Arbitrator that the Respondent employer pay to the Applicant worker, compensation by way of weekly payments. Injury arising out of or in the course of employment; whether employment is a substantial contributing factor; error of law; failure to provide reasons; determination of weekly wage rate; incapacity not continuing; determination of expenses not made pursuant to s 60 WCA.
DATE OF DECISION UNDER APPEAL:	22 January, 2003
HEARING:	16 April, 2003
REPRESENTATION:	Appellant: Mr. M. Adamo, instructed by Turks Legal
Respondent: Mr. B. Batchelor, instructed by Bale Boshev Lawyers
ORDERS MADE ON APPEAL:	The decision by the Arbitrator as to total and partial incapacity for work is revoked and the following decision is substituted: The Appellant is to pay to the Respondent Worker, weekly compensation at the rates to be determined according to law, for a period of total incapacity from 11 October, 2001 to 11 February, 2002, and thereafter, for periods of total or partial incapacity on presentation of appropriate medical certificates, up to 15 October, 2002. The purported decision of the Arbitrator concerning the calculation and determination of the amounts of compensation payable to the Respondent Worker is not a valid decision and the matter is referred to the Registrar for return to the Arbitrator, for a decision to be made by her, according to law. No order is made as to costs.

THE APPEAL

On 19 February, 2003, Chubb Security Australia Pty Ltd, the Respondent in the proceedings before the Arbitrator, (“the Appellant”), lodged an appeal with the Workers Compensation Commission (“the Commission”) against a decision of the Arbitrator, dated 22 January, 2003. The Arbitrator had decided that the Appellant should pay compensation to the Applicant (“the Respondent Worker”), pursuant to section 36 of the Workers Compensation Act 1987 (“the 1987 Act”) at the rate of $495.80 per week from 11 October, 2001 to 23 March, 2002 and thereafter at the statutory rate as prescribed under the the 1987 Act, on presentation of appropriate medical certificates.
The issues in dispute before the Arbitrator were summarised by the Arbitrator, at paragraph 6 of her decision, as follows:
·Did the Applicant receive an injury arising out of or in the course of her employment? (WCA s 9)
·Was the Applicant’s employment a substantial contributing factor to her injury? (WCA s 9A)
·Was the Applicant totally or partially incapacitated for work as a result of her injuries? (WCA s 33)
·For what period was the Applicant totally incapacitated? (WCA ss 36 and 37)
·For what period was the Applicant partially incapacitated? (WCA s 40)
·In respect of any period of partial incapacity for work:
oWhat is the weekly amount which the Applicant would probably have been earning but for the injury, had she continued to be employed in the same or comparable employment? (WCA ss 40(2)(a), 42, 43).
A summary of the resolution by the Arbitrator, of the issues in dispute, is set out in paragraph 31 of the Arbitrator’s Statement of Reasons, as follows:
·On 11 November (sic) 2001, Annette Treverrow received an injury to her right arm arising out of or in the course of her employment as a security officer with Chubb Security Australia Pty Ltd.
·Annette Treverrow’s employment was a substantial contributing factor to her injury.
·Annette Treverrow was totally incapacitated for work as a result of her injuries from 11 October, 2001 to 23 March, 2002. Further periods of both partial and total incapacity were said to have followed, which was not disputed by the Respondent, and reference in some medical reports is made to such, however clear timeframes by way of medical certificates were not available.
Findings and reasons are more fully set out in the Statement of Reasons, at paragraphs 20 to 30 inclusive.

THE ISSUES IN DISPUTE IN THE APPEAL

The grounds of this appeal are as follows:
(1)The Arbitrator wrongly found that the Respondent Worker’s injury arose out of or in the course of employment with the Appellant.
(2)The Arbitrator wrongly found that the Respondent Worker’s employment with the Appellant was a substantial contributing factor to her injury.
(3)The Arbitrator made an error of law in finding that because the Respondent Worker’s injury occurred in the course of employment then employment was a substantial contributing factor.
(4)The Arbitrator failed to provide reasons as to why it was considered the Respondent Worker’s employment was a substantial contributing factor to her injury.
(5)The Arbitrator failed to provide reasons as to why it was determined that the Respondent Worker was partially incapacitated for employment in the period from 23 March, 2002 until 3 September, 2002.
(6)The Arbitrator failed to provide reasons as to why there was a determination that the Respondent Worker was totally incapacitated for employment in the period from 3 September, 2002 until 15 October, 2002.
(7)The Arbitrator did not provide any determination of the current weekly wage rate payable pursuant to section 36 [of the 1987 Act] during the period from 11 November, 2001 until 23 March, 2002, nor was there any evidence which would provide the means to calculate such a rate.
(8)The Arbitrator did not provide any determination of the rate payable pursuant to section 40 [of the 1987 Act] during the period from 23 March, 2002 until 3 September, 2002 nor was there any evidence which would provide the means to calculate such rate.
(9)The Arbitrator did not provide any determination of the rate payable pursuant to section 36 and/or section 37 [of the 1987 Act] for the period after 3 September 2002 nor was there any evidence which would provide the means to calculate such rate.
(10)The Arbitrator ordered payment of weekly compensation on a continuing basis contrary to the statement in the determination, under the heading “Submissions” (at the third paragraph on page 8), that the application was for 3 distinct periods of alleged incapacity.
(11)The Arbitrator did not make any determination regarding the Respondent Worker’s entitlement to payment of section 60 [of the 1987 Act] expenses nor were such expenses identified or quantified.

Three further grounds of appeal were submitted in a supplementary statement on 6 March, 2003. The further grounds of appeal are:

(1)The Arbitrator made an error of law in failing to disclose the essential steps in the reasoning process that led to the assessment of the weekly payment order.
(2)The Arbitrator was wrong in making an order for payment of compensation beyond 11 February, 2002 when there was no medical certificate in evidence to support the finding of partial incapacity after that date.
(3)The Arbitrator was wrong in making an order for payment of compensation beyond 11 February, 2002 when there was no wage material in evidence to confirm the Respondent Worker’s ability to earn in suitable employment and the amount that she would have earned if she had remained in employment uninjured.

Detailed written submissions and copies of supporting authorities were filed by the Appellant, both with the grounds of appeal and with the supplementary statement.
On 7 March, 2003 the Respondent Worker submitted a response to the grounds of appeal lodged by the Appellant and on 11 March, 2003, and provided a copy of two authorities to be included in the submissions made. The Respondent Worker objected to leave to appeal being granted and in addition, submitted that the Arbitrator was not incorrect in her findings nor her award.
Leave to appeal was granted on 27 March, 2003 and directions were given as to the lodgment of further submissions, should that be required, and as to the arrangement for a suitable date for the hearing of the appeal. Both parties had agreed that the question of leave could be determined on the papers.
Further submissions dated 4 April, 2003 were lodged by the Respondent Worker. In these further submissions the Respondent Worker made reference to the weekly payments claim and in particular, conceded that while the Arbitrator arrived at a weekly wage rate of $495.80, in her Statement of Reasons, she did not provide the relevant calculation. It is further conceded that in relation to the various periods of incapacity, it “may not be appropriate that the statutory rate be paid during those times [sic] given that no determination has been made pursuant to section 40, during any period of partial incapacity. Indeed the period of 11 October, 2001 to 23 March, 2002 is less than the 26 weeks prescribed by section 36.” In consequence of these concessions, the Respondent Worker submits that it is apparent, that the determination of the amounts payable to her ought to be referred back to the Arbitrator for determination pursuant to the relevant sections. This is outlined more fully later, in reference to the content of the submissions of the parties.

HEARING

The appeal was heard on 16 April, 2003.

JURISDICTION TO HEAR THE APPEAL

Section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (“the 1998 Act”) provides:
352       Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)    at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)    at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the   Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
Section 354 of the 1998 Act provides for and sets out, the procedure to be followed in proceedings before the Commission.
Leave to Appeal
As previously stated, the Respondent Worker objected to leave to appeal being granted. The submission on this point is found in paragraph 11 of the submissions dated and lodged on 7 March, 2003, as follows:
“There is a significant burden upon the employer to show the statutory policy underlying the requirement for leave is outweighed by the nature and significance of the error alleged in the Judgment, per Kirby P in Gurr –v- Robertson (CA) NSW (Full Court, 381/85) 10 February, 1986 (Unreported); Daily Newspapers –v- McLaughlin (1904) AC 776.”
In Gurr v Robertson the question of leave to appeal from a decision of the District Court was considered. Section 130 of the District Court Act 1973 provided that leave of the Supreme Court was required to appeal from the District Court where the appeal involved directly or indirectly, any claim, demand or question to or respecting any property or any civil right amounting to or of the value of less than $5,000.
The Court of Appeal in that case was considering the question of leave to appeal in a matter where the amount in issue fell below the statutory threshold for appeals from the District Court. That is not the position in the instant case where the threshold requirements for leave to appeal, prescribed in section 352(2) of the 1998 Act, are satisfied. In Gurr and Robertson the “statutory policy” and other “justifications” referred to by His Honour, were reflected in the threshold provision in the relevant Act, (as they are in the 1998 Act), and were referred to by the Court of Appeal when it declined to grant leave in circumstances where that threshold was not met. In the instant case there is no suggestion that the statutory threshold has not been met, and no argument has been put forward in support of any such proposition.
The second case cited, Daily Telegraph Newspaper Company Limited v McLaughlin involved a consideration of specific issues in relation to the question of leave to appeal from the High Court of Australia to the Privy Council, in 1904, and appears to have no significant relevance to the instant case.
The appeal was lodged within the statutory time limit pursuant to section 352(4) of the 1998 Act, and the threshold requirements prescribed in section 352(2), are satisfied. The issue of leave to appeal has been dealt with in previous decisions of the Commission: (cf. Kathleen Maryanne O’Brien v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2003] NSW WCC PD 16; Inghams Enterprises Pty Limited v Michelle Zarb [2003] NSW WCC PD 15; Strang Stevedoring Australia Pty Ltd v Gregory Allan Fitzgibbon [2003] NSW WCC PD 14; Peter McBride v M & B Couriers Pty Ltd [2003] NSW WCC PD 12; William Joseph Crompton v Moree Plains Shire Council [2003] NSW WCC PD 7, and Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5.
Leave to appeal was granted on 27 March, 2003.

THE EVIDENCE BEFORE THE ARBITRATOR

In addition to the documentary evidence lodged by the parties, Annette Treverrow gave sworn oral evidence in the proceedings before the Arbitrator. The documents that were in evidence before the Arbitrator and before me on appeal, as set out in paragraph 12 of her Statement of Reasons for Decision, are as follows:
For the Applicant [the Respondent Worker]
Statement of Annette Treverrow, dated 28 November, 2002.
The following medical reports/certificates:
1.Medical certificate of 9 November, 2001 - Central Sydney Area Health Service;
2.Medical certificate of 9 October, 2001 – Dr. W. Guirguis;
3.Discharge letter dated 22 October, 2001 from Concord Hospital;
4.Report dated [sic] November, 2001 – Dr. Simon Tan;
5.Report dated [sic] December, 2001 – Dr. Robert Breit;
6.Report dated 20 February, 2002 – Dr. W. Guirguis
7.Report dated 27 July, 2002 – Dr. Y. A. Ghabrial;
8.Report dated 15 November, 2001 – Paul van den Dolder, Physiotherapist;
9.Report dated 24 January, 2002 – Jeanette La Porte, Physiotherapist, and
10.Report dated 8 July, 2002 – Concord Hospital, Department of Radiology.
Other documents:
1.Chubb Security injury notification form dated 11 October, 2001, and
2.NRMA Workers Compensation Claim Form dated 31 January, 2002.
For the Respondent [the Appellant]
1.Medical Report being extract from the clinical notes of 11 October, 2001 and 30 October, 2001, of Dr. W. Guirguis.
2.Medical report of 19 June, 2002 – Dr. Derrick Billett, Consultant Orthopaedic Surgeon.
3.Correspondence dated 7 June, 2002, with wage details attached – Maeve Casey, Claims Co-ordinator, Chubb Security Australia Pty Ltd.
4.Correspondence from the Insurer acknowledging the notification of the injury.
5.Correspondence dated 22 February, 2002 from the Insurer, denying liability.
6.Various documents [sic] relating to an application for determination in the Compensation Court of New South Wales.
7.Claim form dated 31 January, 2002, to NRMA Workers Compensation (NSW) Pty Ltd.
Injury, claim, medical treatment and investigation
A brief outline of the events is set out in paragraphs 13 to 18, inclusive, of the Arbitrator’s Statement of Reasons for Decision, as follows:
“13. The Applicant is a 54 year old woman.
14.She commenced employment with the Respondent [Appellant] in March 2001 as a security officer.
15.On 11 October 2001 Ms Treverrow attended her employer’s premises at Ashfield, to speak to her supervisor and to deliver a sick leave certificate. She fell in the carpark and a number of employees of Chubb were said to have come to her assistance, an ambulance was called and she was taken to Concord hospital and operated on for multiple fractures to the right arm, and to treat a dislocation. Further surgery was needed during that admission, and again subsequently on 3 September, 2002.
16.She notified the Respondent [Appellant] of the injury on 31 January 2002.
17.At the time of the injury the Applicant [Respondent Worker] was earning $13.047 per hour and was employed on a part-time basis.
18.The Applicant [Respondent Worker] was treated by surgeons at Concord hospital and was treated for a dislocation of the right elbow and fracture of the proximal radius. This was initially treated by a closed reduction on 11 October 2001 and on 19 October 2001 she underwent a right radial head arthroplasty. Ms Treverrow in her statement and evidence refers to further surgery on 3 September 2002 although no certificate or any medical evidence was provided.”

It was not disputed that the Respondent Worker had suffered a fall in the car park of the Appellant’s premises, nor that she suffered injury and required treatment as a consequence. The central issue in dispute before the Arbitrator was one of liability and the extent of any entitlement to compensation. The submissions made to the Arbitrator are summarized in paragraph 19 of her Statement of Reasons for Decision, and do not need to be repeated.

SUBMISSIONS IN THE APPEAL

The Appellant raised some initial, procedural concerns in the first submission document that was attached to the Appeal Against the Decision of the Arbitrator. The Appellant submitted that it was prejudiced by the delay in being provided with the Certificate of Determination and the Statement of Reasons for Decision, by the Commission. Consequently, there was insufficient time to prepare properly, the Application for Leave to Appeal by 19 February, 2003, the last day on which the appeal could be lodged as required by section 352(4) of the 1998 Act. The Certificate of Determination was dated 22 January, 2003. The Appellant stated:
“On 12 February, 2003 a fax was sent to the Commission requesting advice as to when the Arbitrator’s determination would be available. In response to that fax, on 13 February, 2003, the Commission sent a copy of the Certificate of Determination and the Arbitrator’s Reasons, which were received on Friday 14 February, 2003.”
On 27 March, 2003 leave to appeal was granted and I issued directions allowing the parties to make, lodge and exchange further written submissions. Directions were also given that the matter should be set down for hearing on a date to be fixed. Supplementary submissions dated 6 March, 2003 had been submitted by the Appellant. The Respondent Worker lodged submissions dated 7 March, 2003, 10 March, 2003 (being copies of Gurr v Robinson and Daily Telegraph Newspaper v McLaughlin), and 4 April, 2003. Oral submissions by both parties were made at the hearing before me on 16 April, 2003.
I am satisfied that both parties have now had ample opportunity to prepare and make all of the submissions they wish to be taken into consideration in this appeal, notwithstanding the delay by the Commission in issuing the Certificate of Determination and the Arbitrator’s Statement of Reasons for Decision.
Liability – the Appellant’s written submissions

The Appellant’s submission is that the Arbitrator should have dismissed the Application on the basis that the injury did not arise out of or in the course of the Respondent Worker’s employment, and/or that the employment was not a substantial contributing factor to the injury sustained. As already stated, there is no dispute that the injury occurred on 11 October, 2001, essentially as claimed, and that it was sustained in the car park of the Appellant Employer’s Head Office. The Respondent Worker said that she had gone to the Appellant’s premises to speak to her manager, Mr. Paul Stewart, about an employment issue and to deliver a medical certificate in relation to a sick day that she had taken on 9 October, 2001. The Appellant submitted that she had not been requested to attend the premises nor was she required to do so. She had said that she wished to attend to lodge the medical certificate so that she could receive her sick pay during the current pay period. She was admitted to Concord Hospital as a result of the injury and received medical treatment. The Appellant submitted that the medical certificate is not in the approved form, does not refer to a work injury and does not otherwise comply with section 65(4) or 65(18) of the 1998 Act. It was further submitted that the claim form was not completed by the Respondent Worker until 31 January, 2002.
The Appellant submitted that there was no work-related purpose to the Respondent Worker’s attendance at the Appellant’s premises other than to speak to a manager about an issue that she had with a co-worker. The delivery of the medical cerficate was non-essential and it would not have been delivered on that day, had she not attended for the purpose of speaking to the manager. The Appellant said at page 4 of the submissions lodged with the ‘Appeal Against Decision of Arbitrator’:
“Section 4 of the 1987 Act provides that an injury ‘arising out of or in the course of employment’ is compensable (subject to section 9A). The conditions, ‘out of employment’ or ‘in the course of employment’, are alternatives. The following commentary on the law has been extracted from Mills, Workers Compensation in NSW, published by Butterworths.”
In summary, the extract quoted by the Appellant addressed the following:
·The phrase “arising out of the employment” denotes a causal relationship, while the phrase “arising in the course of employment” denotes a temporal relationship: Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504; [1934] ALR 129.
·The test for “arising out of” the employment is whether the injury had its origin, in the sense of an unbroken causal connection, in the employment: Tarry v Warringah Shire Council [1974] 48 WCR (NSW) 1 (CA): Smith v Australian Woollen Mills Ltd (supra); Craske v Wigan [1909] 2 KB 635 at 638. “[T]he test for the causal relationship has been stated thus: if it appears that the fact of the worker’s being employed in the particular job caused, or to some extent contributed to, the injury, then the injury can be said to have arisen out of the employment: Nunan v Cockatoo Docks & Engineering Co Pty Ltd (1941) 41 SR (NSW) 119 per Jordan CJ.”
·The attendance at the Appellant’s premises did not arise out of her employment as she was not attending to perform work at that time, she was not going to a place of work to commence any employment duties, and her attendance at that time was not incidental to normal employment duties.
·What is required by the phrase “in the course of employment” is some connection with the employment. “In Humphrey Earl Ltd v Speechley (1951) 84 CLR 126; [1952] ALR 46, Dixon J. said that the question whether a worker has been injured in the course of employment is aided by asking whether, when injured, was the worker ‘doing something which he was reasonably required or authorised to do in order to carry out his duties’: at 133, see also Henderson v Cmr of Railways (WA) (1937) 58 CLR 281; [1938] ALR 18. That test is still valid in the case of persons injured during working hours.”
·The test put forward by Dixon J. in Henderson v Commission of Railways (supra) that when injuries do not arise during actual work, whether they arose during the course of employment, should be determined by whether when injured, the worker was doing something which the worker was “reasonably required, expected or authorised to do in order to carry out his actual duties.” Also applied in Humphrey Earl Ltd v Speechley (supra).
·Mere authorisation by the employer of an activity may not be sufficient to bring it within the course of employment: WorkCover Authority (NSW) Billpat Holdings Pty Ltd (1955) 11 NSW CCR 565.
·In Muscat v Woolworths Ltd [2000] 20 NSWCCR [sic] 16, Neilson J. considered “in the course of employment” and stated “However, it is clear that they [viz., the Court of Appeal] at least accept that there must be a causal linkage of some sort between the injury and the employment, although not such as great a causal linkage as ‘arising out of the employment’.”
·The Respondent Worker’s attendance at the Appellant’s premises was not “in the course of employment” because there was no temporal connection with employment – that is, the injury did not occur within the Respondent Worker’s normal work hours, or while at work for a purpose incidental to her normal work duties.
·If the foregoing is not accepted, the mere fact that the Respondent Worker attended the Appellant’s premises to speak to a manager does not mean that the injury occurred in the course of employent, and certainly does not mean that employment was a substantial contributing factor to that injury. Section 9A of the 1987 Act is not satisfied. In particular Section 9A(3)(a) explicitly states that a finding that the injury “arose out of or in the course of employment” is not, in itself, a basis for finding of substantial contributing factor: ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257 par. 17, per Mason P.
·Employment does not refer to the fact of being employed but the actual work that the worker is required to do: Muscat v Woolworths Ltd [supra]; Stanton-Cook v TAFE Commission (NSW) 17 NSWCCR. Hatzimanolis v ANI Corporation (1992) 173 CLR 473 also cited regarding injuries sustained outside of working hours.
Liability – the Respondent Worker’s written submissions
The Respondent Worker’s initial written submissions of 7 March, 2003, in relation to the matter of liability and in response to the lodgment of the appeal, may be summarized as follows:
·The Appellant admits at page 3.11 of its submissions dated 19 February, 2003, that it is not disputed that she had attended the Appellant’s premises for the purpose of making a complaint about a co-worker; that the [Appellant’s] submissions simply reiterate the case law relied upon by the Arbitrator and it has been misconstrued, and that the submissions to the Arbitrator misconstrued section 9A of the 1987 Act.
·The Arbitrator took into account the detailed submissions of the Appellant, both as to law and as to fact and the Arbitrator found in favour of the Respondent Worker as to the factual issues required to be decided as a pre-requisite to applying both sections 4 and 9A of the 1987 Act.
·Essentially, the Appellant is appealing as to the determination of facts as opposed to law and the resolution of the points of law raised in the submissions as to the appeal have no bearing on the facts as decided by the Arbitrator.
·The Arbitrator is entitled in her discretion to read the evidence of Dr. Ghabrial and the Respondent Worker’s statement and to determine that there is incapacity to work.
In further submissions dated 4 April, 2003, the Respondent Worker submitted that the Arbitrator found that she was employed by the Appellant as a security officer; that she worked at Baulkham Hills at the offices of IBM and not at her employer’s premises at Ashfield; that the employer’s office working hours coincided with the Respondent Worker’s own employment hours and she was unable to attend the offices of her employer during her normal working hours; that she had concerns about the behaviour of a fellow worker sufficient for her to bring his conduct to the attention of her employer, and that she had received no response from her employer about the matter despite seeking contact on five occasions without success.
It was further submitted that the Arbitrator found that the Respondent Worker attended upon her employer’s premises on her day off which was the only time available for her to do this given that the working hours were the same as the employer’s office hours at Ashfield; that there were two reasons for attending, being the production of a medical certificate and to report her concerns about the erratic behaviour of a fellow employee; that there was an implicit obligation on the Respondent Worker to inform her employer of concerns in relation to a supervisor “(page 11.28)”, that there was a direct relationship to her employment “(page 11.28)”; that there was an employment characteristic “(page 11.28)”; that the injury occurred in the employer’s car park, and that the injury was reported on the day in question to an employee of the Appellant.
The earlier submission regarding the purpose of the Respondent Worker’s attendance at the Appellant’s premises was repeated, citing admissions as to this contained at page 3.12 of the Appellant’s submissions and page 1 of its submissions to the Arbitrator.
Submissions made by the Respondent Worker in the appeal as to whether the injury arose out of or in the course of employment may be summarized as follows:
·The Arbitrator was correct in her application of the law, at pages 9, 10 and 11 of her decision.
·The Appellant was correct in citing Nunan v Cockatoo Docks and Engineering Co Pty Ltd (supra), Humphrey Earle Limited v Speechley (supra), and Hatzimanolis v ANI Corporation Limited (supra). In particular it was submitted:
“In Hatzimanolis, the High Court found it advantageous to quote from Mahoney JA. who observed in the Court of Appeal in Hatzimanolis at page 129 (1991) 23 NSWLR, ‘and the worker’s employment may extend to other acts or things. There are things which, though a worker is not required by his employment to do and which he might not be obliged to do even if directed by his employer, yet are so connected with his employment that, if he does them, he is acting in the course of the contract of employment’.”
The Arbitrator was correct therefore, in finding in favour of the Respondent Worker in accordance with the law set forth in these cases, notwithstanding that she attended her employer’s premises on a day upon which she would not ordinarily work.
·The Appellant is incorrect in submitting that an attendance by an employee at her place of work on a non-workday is a circumstance that would automatically disqualify her from receiving compensation.
·The Arbitrator correctly found that there was an implicit obligation on the part of the worker such as to make her attendance on her employer an employment characteristic such as characterised by Windeyer J. in Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626 at 641: “some characteristics of the work or the conditions in which it was performed…it must also include that which a worker was reasonably required expected or authorized to do to carry out his work.”
·The Appellant’s submission that her attendance was not in the course of employment, there being no temporal connection because it did not occur within normal working hours or while at work for a purpose incidental to her normal work duties, is incorrect and not in accordance with the law applied in the cases cited.
·In Stanton-Cook v TAFE Commission (NSW) 17 NSWCCR 1999, His Honour Judge Neilson found that the worker had gone to the premises of the employer for the purpose of obtaining a dog coat and did not go to the car park for any work related reason. Logically, had she been present for a work related reason, she ought to have succeeded. This is supportive of the Respondent Worker’s submissions in the instant case.
·The Appellant has not suggested how the Arbitrator may have been wrong in the application of section 9A of the 1987 Act, otherwise than to say that the injury did not occur in the course of employment, or if it did, then employment was not a substantial contributing factor: (ICM Agriculture Pty Limited v Perry (supra) cited). However, the evidence that was accepted by the Arbitrator was that the Respondent Worker sustained the injury when she fell in the employer’s car park and suffered a fracture dislocation of the right elbow. The Arbitrator found that the Respondent Worker was in the car park in the course of her employment.
·Being in the car park was not the cause of the injury but rather, walking in the car park to obtain entry to her employer’s premises was the cause of her fall which in turn, was the cause of the injury, the walking and the falling being the substantial contributing factor to the injury: “Mercer v ANZ Banking Group 20 NSWCCR par 22, per Mason P:
“The worker correctly submits that the words ‘employment concerned’ in section 9A reinforced the view that it is the work activity in which the worker was engaged at the time or injury that is relevant. The ultimate question is whether that activity or task was a substantial contributing factor to the injury, bearing in mind that the concept of a ‘substantial contributing factor to an injury’ is exegeted in section 9A(2) and section 9A(3)’.”

Liability – submissions made at the hearing

It was reaffirmed at the hearing of this appeal that there is no dispute that the Respondent Worker did attend the premises of the Appellant as claimed, and while in the car park of those premises, fell and sustained the injury for which she required hospitalization and medical treatment. The Appellant in affirming the written submissions, again submitted that the Respondent Worker did not attend the premises for any work related purpose and her employment was neither a contributing factor nor a substantial contributing factor: “Bearing in mind the definition of substantial which was given by the [sic] Judge Neilson in the Stanton-Cook case and also in the Maher v Brambles case where substantial was defined to mean a [sic] large or great or weighty.”
The Appellant further submitted however, that where there is more than one contributing factor or more than one purpose for attending an employer’s premises, if the employment factor is minor compared to the other factors, it cannot be regarded as substantial: (Dayton v Coles Supermarkets Pty Ltd (2001) 22 NSWCCR 46. Stephen Albert Ingram v Norco Co-Operative Limited [2003] NSW WCC PD 1 was cited in support of this point); further, it is not the fact of employment but the actual work required to be done that is the relevant consideration; that there was no implied inducement or encouragement for the worker to be there, and that the employer did not know the worker was there nor expect the worker to be there.
The Respondent Worker’s submission was that she had tried unsuccessfully to speak with her supervisor by telephone on a number of occasions, had failed on each occasion, and finally informed the person to whom she spoke on the telephone that she would be “coming in”. She wanted to lodge a complaint about a fellow worker and it was not appropriate for her to do that with anyone else. Her secondary reason was to lodge the medical certificate in relation to sick leave that she had taken. It was conceded that she could have had the certificate delivered in some other way, but as she was going to the premises for another purpose, she took it with her. It was further submitted that the injury arose out of and in the course of her employment. She would not have been at the premises nor suffered the injury, but for her employment.
Mr. Batchelor for the Respondent Worker submitted that the genesis of their submission was that “arising out of employment” is a more stringent test than a “substantial contributing factor”: Mercer v ANZ Banking Corporation Ltd (2000) 20 NSWCCR 70, per Mason P, at page 81, citing Popovski v Ericsson Australia Pty Ltd [1998] VSC 61 at para 54: “The requirement that the injury arise out of employment remains more stringent than the requirement that the employment be a significant contributing factor…It’s possible to envisage situations in which injury might not satisfy the former test, yet would satisfy the latter.” Muscat v Woolworths Ltd (2000) 20 NSWCCR 16; Healey v Delta Electricity (2000) 20 NSWCCR 491, (especially at page 495, par 18 referring to Lancashire and Yorkshire Railway Co v Highley). Jadoul v Qantas Airways Limited (2001) 22 NSWCCR 229, also cited. There must be a causal link between the injury and the employment, “although not such a close causal linkage as arising out of the employment.”: Muscat v Woolworths Ltd (supra).
It was further submitted by the Respondent Worker that Stanton-Cook TAFE Commission (NSW) 17 NSWCCR 632 is important because on the facts in that case it was established that the claimant travelled to the car park of her employer for a purpose other than a work-related purpose, that not being the case in the instant matter. Hatzimanolis v ANI Corporation (supra) also cited. In summary it was submitted that this is clearly a question of fact and that there was ample evidence for the Arbitrator to find as she did on the question: “The worker’s reasons for being in the carpark, where she fell, were not in any way in dispute, and we would say there’s a clear causal connection, so there is a substantial contributing factor in that regard.”
The Appellant submitted on the other hand, that the question of liability is not simply a question of fact. There is no dispute as to the factual scenario. It is the legal effect of the factual scenario that is in issue. It was no part of the Respondent Worker’s employment “to hazard, to suffer, or to do that which caused the injury”. There was no requirement for her to be where she was at the time.
Compensation and payments
The Appellant’s written submissions may be summarized as follows:
·The Arbitrator did not make any determination as to the current weekly wage rate or the average weekly earnings of the Respondent Worker which, for a part-time worker such as she was at the time, is required to be calculated pursuant to section 42(1)(a) or 42(1)(d) and section 43 of the 1987 Act. The Arbitrator merely multiplied the hourly rate of $13.047 by 38 to provide a weekly rate of $495.80 whereas there was no evidence that this was the current weekly wage rate calculated in accordance with section 42(1)(a) or section 42(1)(d).
·The Arbitrator did not identify the industrial award rate of pay that may have applied nor the applicable average weekly earnings if there was no appropriate award.
·The Arbitrator did not make any determination as to the worker’s reduction in earning capacity during the period of partial incapacity between 23 March, 2002 and 3 September, 2002. No determination was made by the Arbitrator as required by section 40(2)(a) and section 40(2)(b) of the 1987 Act.
·In the absence of any findings as to the Respondent Worker’s actual or probable earnings pursuant to these provisions, there can be no determination of the rate payable pursuant to section 40 for any period of partial incapacity. The Arbitrator has not in fact, specified any rate to be paid to the Respondent Worker for periods of partial incapacity. The order that the employer pay weekly compensation after 23 March, 2002 “at the appropriate statutory rate” is uncertain, and does not take into account that the “statutory rate” for the first 26 weeks of incapacity is different to the “statutory rate” after the first 26 weeks.
·Even if the maximum amount for the “statutory rate” had been properly identified by the Arbitrator, there can be no valid determination of the section 40 rate without first making the determination required by section 40(2)(a) and (b), of the 1987 Act.
·If it is assumed, as the Arbitrator appears to have done, that the Respondent Worker normally worked a 38 hour week, that upon her return to work she was working only 25 hours per week, then the loss of earnings would be equal to 13 hours per week. Applying the hourly rate of $13.047 the loss of earnings would be $169.61 per week, which is considerably less than the “statutory rate” which the Arbitrator ordered to be paid.
·The Arbitrator ordered payment of weekly compensation after 23 March, 2002 “on presentation of appropriate medical certificates” but has not closed off the period for which compensation is to be paid, having regard to her statement at page 8 of her Statement of Reasons for Decision, that the claim was only to 15 October, 2002.
·There was no evidence before the Arbitrator and no findings were made, regarding the Respondent Worker’s expenses pursuant to section 60 of the 1987 Act.

The supplementary submissions of 6 March, 2003 by the Appellant may be summarized as follows:
·While the Commission is not bound by the rules of evidence, it is obliged to have evidence upon which it can make a determination. In this case there was a shortage of evidence with regard to the earnings of the worker and comparable employees, and a lack of any medical certification after 11 February, 2002.
·The worker bears the onus of proving her case and the employer need not tender any evidence, contrary to the view put to the Arbitrator by the Respondent Worker. There was no suggestion that the Respondent Worker had requested relevant wage information from the Appellant, nor that she had sought compliance with a direction to produce if one had been issued.
·There is no indication in the Arbitrator’s Statement of Reasons for Decision that she analysed or had any regard to the wage material produced by the Appellant, this being the only wage material available to her.
·The Arbitrator’s statement “Further periods of both partial and total incapacity were said to have followed [23 March 2002] which was not disputed…” is incorrect. The Appellant did not dispute the period of total incapacity from 11.10.2001 to 11.2.2002 covered by the medical certificate of Dr. Tan, but did not admit any subsequent periods of incapacity.
·While certain submissions were made about the Respondent Worker’s working hours after February or March, 2002, this was not confirmed by reference to the wage material that was produced by the Appellant, nor was the Respondent Worker asked in her oral evidence, to give any evidence to confirm those submissions about the hours of work and actual earnings.
·The Arbitrator failed to apply the statutory provisions with regard to the determination of an incapacitated worker’s entitlement to compensation during periods of total and partial incapacity for work (referring to sections 36, 37 and 40 of the 1987 Act, supplemented by sections 42, 43 and 43A of the 1987 Act).
·The Arbitrator failed to follow the steps for determining partial incapacity payments as set out in the Court of Appeal decision in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 at 529-530. Particular reference is made to the following at page 533:
“However, the capacity to proceed informally as regards proof of evidence does not relieve the Court of the duty to disclose its essential reasoning process. Indeed, that duty may be heightened where the court dips into its general store of knowledge rather than proceeds upon the basis of the evidence tendered before it.”
·The only certification of inability to return to work is the medical certificate of Dr. Tan, covering a period to 11 February, 2002, only. The submission put to the Arbitrator that the report by Dr. Guirguis dated 20 February, 2002 provided evidence of incapacity after the expiration of Dr. Tan’s medical certificate of 11 February, 2002 is not correct, as Dr. Guirguis’ report states that he last saw the Respondent Worker on 23 November, 2001, three months prior to the date of Dr. Tan’s report.
·Dr. Ghabrial’s report prepared following a medico legal consultation with the Respondent Worker on 27 July, 2002 does not state and cannot be relied upon as evidence to support, that the Respondent Worker was unfit for normal employment duties, as it simply states that she was restricted in the performance of certain activities.

The Respondent Worker’s written submissions of 7 March, 2003 and 4 April, 2003 may be summarized as follows:
·The Respondent Worker’s statement before the Arbitrator was unchallenged and contains evidence of wage rates, weekly earnings and incapacity. No evidence was led by the Appellent, to the contrary. “No submission was made except a non-admission.” Specifically, attention was invited to page 8 line 45 to page 9 line 15 and page 12 of the transcript of the proceedings before the Arbitrator.
·The Arbitrator is entitled in her discretion to read the evidence of Dr. Ghabrial and the Respondent Worker’s statement and determine that there is an incapacity for work.
·The Arbitrator found that the Respondent Worker was totally incapacitated from 11 October 2001 to 23 October, 2002 and it is submitted that this is not an incorrect decision, being open to the Arbitrator upon the medical evidence tendered by both parties.
·It is conceded that “what is apparent is that the arbitrator has arrived at a weekly wage rate of $495.80 but in her judgment does not provide the calculation. It is agreed that the Applicant was a casual worker.”
·For the purposes of section 36 of the 1987 Act, the rate was calculable from the material provided to the Arbitrator. Further, the Appellant concedes that the Respondent Worker was paid an hourly rate of $13.047, and it was within its knowledge and capacity to provide the information as to average hours worked in order to satisfy any calculation pursuant to section 42 of the 1987 Act. “However in the circumstances it is accepted that the arbitrator has not provided in her judgment, her calculations so that the parties are able to properly determine the reasons for her judgment. That part of the judgment and the case perhaps ought to be remitted to the arbitrator for proper determination.”
·The Respondent Worker’s submissions are concluded by the following statement:
“The arbitrator found that subsequent to 23 March 2002 the Applicant was for periods of time both partial [sic] and totally incapacitated. The arbitrator does not determine the relevant periods, however orders that the worker be paid the appropriate statutory rate upon presentation of appropriate medical certificates.
The worker submits that the arbitrator was not in error in providing for payment of weekly compensation upon presentation of the appropriate medical certificates, the arbitrator obviously found that such medical certificates would determine the incapacity of the worker at the relevant time. It is thus in the submission of the Respondent a correct determination.
What is conceded however is that it may not be appropriate that the statutory rate be paid during those times given that no determination has been made pursuant to section 40, during any period of partial incapacity. Indeed the period of 11 October 2001 to 23 March 2002 is less than the 26 weeks prescribed by section 36.
It is therefore apparent that the determination of the amounts payable to the worker ought to be referred back to the arbitrator for determination pursuant to the relevant sections.”
Brief, oral submissions in support of the written submissions outlined above, were made by both parties at the hearing before me. They may be itemized as follows.

The Respondent Worker
·There is no dispute that the worker was totally incapacitated up until the date in March, and no issue is taken with that period for which she should receive compensation at the total incapacity rate.
·There has not “been the section 40 exercise that perhaps should have been undertaken in respect of the period between March and September, when the worker was partly incapacitated and working, it appears, five hours a day, five days a week. I would say, however, that there was nevertheless evidence on which the arbitrator could have, and it appears did make a finding of the worker’s capacity for work during that period.”
·Dr. Ghabrial and Dr. Billet both recorded in their reports that the Respondent Worker was working 5 hours per day, 5 days per week, so whilst conceding that the “section 40 exercise” has not been undertaken, it is submitted that there was still material on which the arbitrator could base a finding of partial incapacity for the period until September, and also material that would base a finding of total incapacity for the period that related to the surgery that was carried out, being September and October, 2002. Notwithstanding that the contents of the medical reports are a recording of the history of the patient, this was evidence before the Arbitrator and is evidence for all purposes. The Commission is not bound by the rules of evidence and can inform itself in ways it sees fit to inform itself.
·There is no dispute about the hourly rate of $13.047, thus there was material on which the arbitrator could base her calculation of the entitlement to compensation for total incapacity and for partial incapacity.

The Appellant
·The reasoning process required of the Arbitrator did not occur whether or not there was evidence upon which she could rely. That has been conceded by the Respondent Worker.
·Referring to page 12 of the transcript of the proceedings before the Arbitrator, it was put to the Arbitrator by the agent for the employer that there was no wage material produced beyond June, 2002 and the onus to ensure that it was produced sat with the Respondent Worker. The Arbitrator was informed that, as a consequence, no submissions would be made in respect of the claim for the partial incapacity. In light of this there was no evidence before the Arbitrator for the period after June, 2002.
·No determination was made by the Arbitrator pursuant to section 60 of the 1987 Act and these have never been particularized, notwithstanding a number of requests made by the Appellant.
·It is necessary to disclose the essential steps in the reasoning process in arriving at an assessment of weekly payments, and this was not done: Mitchell v Central West Health Services (1997) 14 NSWCCR 526.
·The references in the doctors’ reports regarding working five hours per day, five days per week are merely a record of the history provided to the doctors by the Respondent Worker, and do not replace the need for wage records to substantiate actual or probable earnings.

DECISION

In summary, the parties are in substantial agreement concerning the facts of this matter in that there is no dispute that the Respondent Worker attended the premises of the Appellant, her employer, on the day in question; that she fell in the car park of the premises and sustained an injury, which required hospitalization and medical treatment; that she attended at the premises to speak to her supervisor about another employee who was located with her at her usual work site, and that she brought with her a medical certificate which she wished to produce in support of sick leave that she had taken. The parties are in dispute as to the need for and the legal status of, her attendance, and whether this was work-related for the purposes of liability for workers compensation and payment thereof, as a consequence of the injury sustained. There are three substantive components in this appeal that are in dispute. They are the issues of liability, total and/or partial incapacity for work, and the calculation and payment of compensation (although concessions as outlined, have been made by the Respondent Worker, with regard to calculation of compensation).
Liability
The definition of injury is contained in section 4 of the 1987 Act, which provides as follows:
“4.      Definition of “injury” (cf former x 6(1))
In this Act:
Injury:
(a)means personal injury arising out of or in the course of employment,
(b)includes:
(i)    a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii)   the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c)does not include (except in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

Section 9 of the 1987 Act provides that a worker who has received an injury shall receive compensation from the worker’s employer in accordance with the Act. Compensation is payable whether injury was received by the worker at or away from the worker’s place of employment.
Section 9A provides as follows:
“9ANo compensation payable unless employment substantial contributing factor to injury

(1)No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.

(2)The following are examples of matters to be taken into account for the purposes of determining whether a workers’ employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):

(a) the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,

(c) the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.

(3)A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:

(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.

(4)This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”

While there is some difference of emphasis in various documents and submissions before me, as to the primary purpose of the Respondent Worker’s attendance at the premises of her employer, the essential facts are not disputed. It is established that she made several attempts (at least five according to her statement) without success, to speak by telephone, with Mr. Paul Stewart, her supervisor at the Appellant’s head office at Ashfield, regarding the alleged inappropriate behaviour of a work colleague at the work site at which they were co-located. On the last occasion, Mr. Stewart was not available and she said to the person to whom she spoke on the telephone that she was “coming in” to speak with him. There is no evidence that she was discouraged from or instructed not to pursue, this course. In her statement Mrs. Treverrow said that during the course of that particular telephone conversation there was some discussion about the lodgment of a medical certificate, and she was told that she needed to submit it promptly in order to be paid during the current pay period, for sick leave that she had taken. Whatever the relative priority of her concerns, it is clear that she proceeded to the premises of her employer, albeit on her rostered day off, for the purposes of making a complaint about or at least speaking formally with her supervisor, about the conduct of a work colleague and to submit a medical certificate in support of sick leave, so that she could be paid within the current pay period. There is no evidence that she went to the Appellant’s premises for any other reason or reasons, and the substantive facts in this regard put forward by the Respondent Worker, were not challenged or rebutted by other evidence. In the circumstances, there is no reason why Mrs Treverrow’s evidence as to the facts including the purpose(s) of her attendance at the premises of her employer should not have been accepted by the Arbitrator.
For an injury to arise out of employment giving rise to liability for payment of compensation, there must be a causal connection between the injury and the work that was required to be performed. If the person’s employment in that particular job caused or to some extent contributed to the injury sustained, then the injury can be taken to have arisen out of the employment: Nunan v Cockatoo Docks and Engineering Co Pty Ltd (1941) 41 SR (NSW). In Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504, Starke J said, inter alia, at page 517:
“The expression ‘arising out of’ imports some kind of causal relationship between the employment, but it does not necessitate direct or physical causation. Was it part of the injured person’s employment to hazard, to suffer, or to do that which caused his injury? It must arise out of the work which the worker is employed to do - out of his service: Stewart v Metropolitan Water Sewage and Drainage Board (1932) 48 CLR 216 at 226.” (See also Tarry v Warringah Shire Council [1974] WCR (NSW) 1 (CA)).
His Honour went on to say, at page 518:
“An injury which arises directly out of circumstances encountered because to encounter them falls within the scope of employment is an injury arising out of the employment. If the worker is injured by contact physically with some part of the place where he works [sic], then apart from the question of his own misconduct, he at once associates the injury with his employment....”
The phrases “arising out of employment” and “in the course of employment” are alternatives, it being sufficient to satisfy one of these to meet the requirements of the section.
An injury arising in the course of employment is one that arises during the whole of the time that the person is engaged in the performance of his or her duties of employment and other things that are reasonably incidental to it: Davidson and Another v Mould [1944] 69 CLR 96. In Katroulis v E R McNamara Pty Ltd (1993) 9 NSWCCR 196 at 200, Geraghty J observed that the words ‘in the course of employment’, “…do not seem to bear any longer their obvious and immediate meaning. They have an extended meaning, a development which has taken place since Henderson v Commission of Railways (WA) (1937) 58 CLR 281 and Humphrey Earl Ltd v Speechley (1951) 84 CLR 126.” His Honour referred to Hatzimanolis v ANI Corporation Ltd (1992) 8 NSWCCR 242, and said:
“In their joint judgments, Mason CJ, Dean, Dawson and McHugh, JJA, refer to section 9 of the Act which provides that a worker who has received an injury is to receive compensation. Section 4 of the Act defines injury as meaning ‘personal injury arising out of or in the course of employment’. For the purposes of section 4, ‘course of employment’ is not identical with a period of employment of a worker, or with the work which the person performs. It includes ‘the natural incidents connected with a class of work’. It also includes episodes, incidents in which the worker may be injured in doing something which is part of or incidental to his service.
Dixon J. in Whittingham v Commissioner for Railways (WA) (1931) 46 CLR 22 at 29 thought that in considering what was incidental to service:
‘the sufficiency of the connection between the employment and the thing done by the employee cannot but remain a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of employment’.”
In the case cited by His Honour, Dixon J. said further, that there could “no longer be any doubt that the accident must happen while the employee is doing something which is part of or incidental to his service.”
The answer to the question whether a worker has been injured in the course of employment is assisted by asking was the worker doing something which he or she was reasonably required or authorized to do in order to carry out his duties: Humphrey Earl Ltd v Speechley (supra). However, in Hatzimanolis v ANI Corporation Ltd (supra), the High Court said:
“…an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment.”

McManamey, Goldberg and Monaghan, in Workers Compensation Law Manual, at par 2.440 state that the essential thread running through the cases (since Hatzimanolis) is that the employer expressly or impliedly induced or encouraged the activity. However, the mere authorization by an employer of an activity will not be enough to bring it within the course of employment: WorkCover Authority (NSW) V Billpat Holdings Pty Ltd (1995) 11 NSWCCR 565. The Appellant pointed to Muscat v Woolworths Ltd [2000] 20 NSWCCR 16, in which Neilson J. in considering ‘in the course of employment’ said: “However, it is clear that they [viz the Court of Appeal] at least accept that there must be a causal linkage of some sort between the injury and the employment, although not such as great a causal linkage as ‘arising out of the employment’.” See also Federal Broom Company Pty Ltd v Semlitch (1994) 110 CLR 626.
Following a review of the relevant evidence and the authorities cited in this appeal, it is clear to me that the Arbitrator was entitled to arrive at the conclusion that the requirements of section 4 of the 1987 Act, insofar as the elements of the definition of “injury” are concerned, are satisfied. The reasons that the Respondent Worker went to the premises of the Appellant were wholly work related and she attended for no other purpose, whatsoever. She had attempted to make contact by telephone on several occasions, without success. When she announced that she was “coming in”, she was not discouraged from this course, nor was she instructed to do otherwise. Her attendance at the premises was expected and anticipated, at least by the representative of the Company to whom she spoke on the telephone, if not by her supervisor. Moreover, according to her unchallenged evidence, she was encouraged to submit her medical certificate for sick leave purposes, without delay, so that she could be paid sick leave during the current pay period. There is no doubt that what she did was at least incidental to and in the course of her employment, notwithstanding that the attendance and injury occurred during her rostered day off. I find that the Arbitrator was correct in this regard.
Turning to section 9A of the 1987 Act, Neilson J. in Stanton-Cook v TAFE Commission (NSW) [1999] 17 NSWCCR 5 said:
“…since the enactment of s9A it is insufficient to prove that the employee was in the course of his employment. It must be established that the injury arose out of the employment, that is there was a causal relationship between the injury and the work which the worker is required, expected or authorized to do in pursuit of his employment contract.”
Case note (1) in Mercer v ANZ Banking Group Ltd (2000) 20 NSWCCR 70, the Court of Appeal, at 71, reads:
“In applying s 9A(1) of the Act, it is the strength of the causal linkage between the employment concerned and the injury that is in question. The words ‘employment concerned’ reinforce the view that it is the work activity in which the worker was actually engaged at the time of injury that is relevant. A ‘contributing factor’ must be some event, or occurrence in the course of employment or some characteristic of the work performed or the condition in which it was performed. The ultimate question is whether the activity or task was a ‘substantial contributing factor to an injury’ bearing in mind that the concept is exegeted in s 9A(2) and 9A (3). Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 applied.”

It is not the fact of employment but the actual work that the injured person is required to do in the course of that employment that is relevant: Muscat v Woolworths (supra); Stanton-Cook v TAFE Commission (NSW) (supra). It is what the injured person was in fact doing in his or her employment that caused or contributed to the injury as defined in section 4 of the 1987 Act.

A substantial contributing factor is not equivalent to an injury arising out of employment: the test is less stringent than that: Mercer v ANZ Banking Group Ltd (supra): Popovski v Ericsson Australia Pty Ltd [1998] VSC 61 per Ashley J. at 54 considered and followed. In Muscat v Woolworths Ltd (supra) Neilson J. held that the term “employment” in section 9A(1) of the Act includes matters incidental or ancillary to the employment or the conditions in which it is performed: Carruthers v Metropolitan Meat Industry Commissioner [1938] 12 WCR (NSW) 37 considered. Case note (3) at page 283 states the following:
“For an employment to be a substantial contributing factor to an injury within the meaning of S 9A of the Act, it is sufficient that the injury arose in the course of employment and has some causal connection with employment less than arising out of employment. The test is thus less stringent than that requiring that the injury arose out of and in the course of employment. Mercer v ANZ Banking Group (2000) 20 NSWCCR 70 applied.”
On the facts of the instant case and on a consideration of the relevant authorities cited, the injury to the worker arose in the course of employment, and there was a causal relationship between the injury and the work that the worker was required to do, that is, there was a causal connection with her employment. What she did was incidental or ancillary to her employment or the conditions in which her work was performed. Her actions were wholly related to her employment and the injury occurred during the course of her work-related activities, in that employment. Clearly, her employment was a substantial contributing factor within the meaning of the section and the Arbitrator was correct in finding that section 9A(1) of the 1987 Act is satisfied.
There was no evidence before the Arbitrator, nor is there evidence before me to substantiate non-compliance with the provisions of section 9A(2) of the 1987 Act, on the part of the Respondent Worker. See Supair Pty Ltd v Sweeney (2000) 20 NSWCCR 514. Again, while the finding that the injury arose during the course of employment is not determinative, having regard to section 9A(3) of the 1987 Act, of the employment being a substantial contributing factor, it is a relevant consideration in such a determination: Supair Pty Ltd v Sweeney (supra). Moreover, the necessary and significant causal linkage described above, is present: Mercer v ANZ Banking Ltd (supra). This establishes the employment as a substantial contributing factor beyond the “merely because” test prescribed in section 9A(3) and in particular 9A(3)(a): Mercer v ANZ Banking Group Ltd (supra); Farrelly v Qantas Airways Ltd (2001) 22 NSWCCR 331; Jaboul v Qantas Airways Ltd (2001) 22 NSWCCR 229.
The Appellant made the point in submissions that the claim form was not completed by the Respondent Worker until 31 January, 2002. I note that the injury occurred on 11 October, 2001 and consequently, the claim was made within the time prescribed in section 65(7) of the 1998 Act. Moreover, the Arbitrator noted that an employee of the Appellant recorded details of the incident on the date of the injury. The Respondent also made the point that the claim may not have been made in accordance with the Act. I note that the Arbitrator found that 65(12) applied so that any failure to meet the requirements of section 65(1) was not a bar to the recovery of compensation. In any event, section 65(1)(c) provides, in relation to a claim for weekly payments of compensation, that the certificate may be “…in any other form and contains information that is reasonably sufficient in the circumstances to assist in the determination of the claim…”. The medical evidence provided in support of the claim (as well as the report of Dr. Derrick Billett, dated 19 June, 2002 provided to the Appellant) substantially includes the necessary information. There has been substantial compliance with section 65(4) and otherwise with the requirements of the section, and in any event, it made no material difference in the proceedings before the Arbitrator.
In summary, liability is established on the evidence, as the injury sustained by the Respondent Worker occurred in the course of her employment at the premises of the Appellant, and further, her employment was a substantial contributing factor to that injury.
Total and/or partial incapacity for work
There is no reference to, or discussion of, the matter of total and/or partial incapacity for work under the heading “Findings and Reasons” in the Arbitrator’s Statement of Reasons for Decision. The following comment is made under the heading “Summary” at paragraph 31:
“In summary, the resolution of the issues in dispute is as follows:

·…
·…
·Annette Treverrow was totally incapacitated for work as a result of her injuries from 11 October 2001 to 23 March 2002. Further periods of both partial and total incapacity were said to have followed which was not disputed by the respondent and reference in some medical reports is made to such, however clear timeframes by way of medical certificates were not available.”

The Arbitrator’s decision in relation to payment of compensation for the periods of incapacity, is set out in paragraph 32, as follows:
“For the reasons set out in this statement the decision in this matter is:

1. That the respondent pay to the applicant compensation pursuant to section 36 of the Workers Compensation Act 1987 at the rate of $495.80 from 11 October 2001 to 23 March 2002 and thereafter at the appropriate statutory rate as prescribed under the act and on presentation of appropriate medical certificates.
2. That the respondent pay the applicant’s costs as agreed or taxed.”

The Appellant submits that there was no dispute that a period of total incapacity existed from 11 October, 2001 to 11 February, 2002, having regard to the medical certificate of Dr. Tan, that was before the Arbitrator. However, the Appellant further submits that no further periods of incapacity were conceded. The Respondent Worker submits on the other hand, that the Arbitrator’s finding that a period of total incapacity existed from 11 October, 2001 to 23 March, 2002 “is not an incorrect decision and that it was open to the arbitrator upon the medical evidence tendered by both parties.” The medical report dated 20 February, 2002 compiled by Dr. Guirguis states that the Respondent Worker continued to be unfit for work pending physiotherapy. According to his report, Dr. Guirguis last saw the Respondent Worker on 23 November, 2001, three months prior to the date of that report. Consequently, it is submitted by the Appellant, that this cannot be evidence of incapacity after 11 February, 2002. Dr. Guirguis’ view was that she remained unfit for work “pending physiotherapy” and the final prognosis depended on the outcome at the conclusion of her physiotherapy treatment. While I agree with the Appellant that this alone, is not conclusive evidence in a determinative sense, of the actual period or periods of incapacity, Dr. Guirguis’ statement can be given weight, particularly when considered along with other medical reports and documents before the Arbitrator, to indicate on the balance of probabilities, the likely existence of one or more periods of incapacity after that date. Beyond that, the medical report of Dr. Ghabrial, dated 27 July, 2002 contains the statement: “Mrs. Treverrow is not fit for activities involving excessive use of the right upper limb or any use which involves carrying or gripping.” The Arbitrator gives no reasons for deciding that the Respondent Worker was unfit for work until 23 March, 2002, and on inspecting the evidence that was before her, the transcript of the proceedings, and the contents of the relevant file, I am unable to ascertain the basis upon which that date was established, although some date beyond 11 February, 2002 is appropriate, having regard to the totality of the medical material before the Arbitrator, including Dr. Guirguis’ report of 20 February, 2002. Unfortunately, there is no medical certificate in evidence that could put the precise date beyond doubt.
The Arbitrator did not determine precisely, other periods of total incapacity or any periods of partial incapacity other than to say that the further periods of both partial and total incapacity following the initial period of total incapacity were “not disputed by the respondent and reference in some medical reports is made to such, however clear timeframes by way of medical certificates were not available.” On my reading of the evidence before the Arbitrator, periods of incapacity beyond 11 February, 2002 were in fact disputed by the employer. This is supported by reference to page 9 of the transcript of the arbitral proceedings where the point was made, unequivocally. However, it is apparent that there were other periods of incapacity as I have already said, having regard to the statement in Dr. Guirguis’ report of 20 February, 2002, the contents of other medical reports, the nature of her injuries and the extent of her treatment, all of which are in evidence. Moreover, the report dated 19 June, 2002 prepared by Dr. Billett for the Appellant, includes the statement: “As a result of the injury sustained to her right elbow on 11 October, 2001, Mrs Treverrow discontinued working. She returned to work in April, 2002, working for five hours per day, five days per week, at the Australian Taxation Office, undertaking security duties.” Clearly, this is information that the Respondent Worker conveyed to Dr. Billett (and is not his independent knowledge). However, it is at least evidence of what she said to him and what was accepted by him, and indicative of a period or some periods of further incapacity.
The Appellant submits that the decision made by the Arbitrator does not close off the period for which compensation is to be paid, notwithstanding that she stated at paragraph 19 of her Statement of Reasons for Decision, that the claim was for three closed periods, being 11 November, 2001 – 23 March, 2002 (this in fact should be 11 October, 2001 - 23 March, 2002), being a period of total incapacity; 23 March, 2002 – 3 September, 2002, being a period of partial incapacity, and 3 September, 2002 – 15 October, 2002, being a period of total incapacity. In my view, the order made by the Arbitrator should have been more specific in order to reflect her intention accurately, in relation to closing off the last period for which compensation should be paid. Moreover, if no precise evidence of those closed periods was tendered, the Respondent Worker should have been asked to provide it.
In summary, a medical certificate and other evidence was before the Arbitrator to substantiate a definite period of total incapacity from 11 October, 2001 to 11 February, 2002. There was medical evidence before the Arbitrator to indicate the existence of further periods of incapacity, but the precise details of the nature and duration of these periods were not ascertainable from that evidence, which unfortunately, did not include medical certificates specifying these details. In the circumstances, the Arbitrator was as specific as she could be in relation to the nature and periods of incapacity, except that she did not include 15 October, 2002 as the last day for which compensation was payable, pursuant to the claim made by the Respondent Worker.
Calculation of weekly payments of compensation
The Appellant provided detailed submissions in support of the grounds of appeal stating that the Arbitrator gave neither reasons for, nor an outline of, the calculations necessary to satisfy the statutory requirements, as to weekly payments of compensation. The Appellant’s submission, summarized earlier, and detailed here for reasons of clarity, is encapsulated in part of the supplementary statement of 6 March, 2003, lodged with the Commission for the purposes of this appeal, as follows:
“There was no submission by the applicant’s legal representative that his calculation of the applicant’s earnings was in fact based on the wage material that had been produced by the respondent. The applicant’s legal representative made certain submissions about what the applicant alleged her hours of work after February or March 2002 had been, but did not seek to confirm those submissions by reference to the wage material produced by the respondent. The Applicant had been called to give oral evidence and neither the Arbitrator nor the applicant’s legal representative sought to have her give evidence to confirm the submissions made by the applicant’s legal representative about the hours of work and actual earnings.
The Commission, whether or not it is relieved of the obligation to apply the rules of evidence, is still required to apply the law.
Sections 36, 37 and 40 of the 1987 Act (supplemented by sections 42, 43 and 43A) set out the manner of determining an incapacitated worker’s entitlement to compensation during periods of total and partial incapacity for work, and the Arbitrator failed to apply those statutory provisions.
The Arbitrator failed to follow the steps for determining partial incapacity, as set out in the Court of Appeal decision of Mitchell v Central West Health Service (1997) 14 NSWCCR 526 at 529-530 (per Mason P, Beazley JA and Grove A-JA).

It was also said in that case, at 533:

‘However, the capacity to proceed informally as regards proof of evidence does not relieve the Court of the duty to disclose its essential reasoning process. Indeed, that duty may be heightened where the court dips into its general store of knowledge rather than proceeds upon the basis of the evidence tendered to before it.’”

In submissions on appeal dated 4 April, 2003, lodged by the Respondent Worker’s legal representative the point was conceded, in the following terms:
“However, what is apparent is that the Arbitrator has arrived at a weekly wage rate of $495-80, but in her judgment does not provide the calculation. It is agreed that the Applicant was a casual worker.

As to the proper rate for the purpose of section 36 the rate was calculatable (sic) upon the material provided to the Arbitrator, indeed the Appellant concedes that the worker was paid an hourly rate of $13.047. Interestingly the Appellant does not suggest how the sum of $495.80 is incorrect when one would have thought that it was within their knowledge as to the average hours worked per week during the period of employment so as to satisfy any calculation pursuant to section 42. However in the circumstances it is accepted that the Arbitrator has not provided in her judgment, her calculations so that the parties are able to properly determine the reasons for her judgment. That part of the judgment and the case perhaps ought to be remitted to the arbitrator for proper determination.”

The Respondent Worker further stated:
“The worker submits that the Arbitrator was not in error in providing for payment of weekly compensation upon presentation of the appropriate medical certificates, the Arbitrator obviously found that such medical certificates would determine the incapacity of the worker at the relevant time. It is thus in the submission of the Respondent a correct determination.
What is conceded however is that it may not be appropriate that the statutory rate be paid during those times given that no determination has been made pursuant to section 40, during any period of partial incapacity. Indeed the period of 11 October 2001 to 23 March 2002 is less than the 26 weeks prescribed by section 36.
It is therefore apparent that the determination of the amounts payable to the worker ought to be referred back to the Arbitrator for determination pursuant to the relevant sections.”

Consequently, it is not in dispute between the parties, and I agree with them, that the Arbitrator has not made the necessary calculations pursuant to the relevant sections of the 1987 Act in order to arrive at her decision with regard to the quantum of weekly payments of compensation for periods of either total or partial incapacity. However, as the relevant legislation stands, I have no power to simply remit the matter back to the Arbitrator, as requested by the parties. Section 352(7) of the 1998 Act provides: “On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.”
Nevertheless, in order to preserve the rights of the parties, it appears to me to be inappropriate in this case to proceed to make the decision that ought to have been made properly at first instance by the Arbitrator, based upon the necessary calculations and reasons to support it, unless of course the parties are able to settle the matter.

However, in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at paragraph 51, the High Court said:
“A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.”
It is a pre-condition to making an order for the payment of amounts of compensation, once liability has been established, that the calculations required by the relevant provisions of the 1987 Act must be made in order to arrive at the amount or amounts so ordered. There is no evidence or indication in the Arbitrator’s Statement of Reasons for Decision as to how this was done nor indeed, that it was done at all, with the result that a valid decision in this regard has not been made, and the matter remains to be properly determined according to law. The issue of jurisdictional error has been discussed in a number of appeals covering various circumstances that have come before Presidential members of the Commission: cf. Inghams Enterprises Pty Limited v Michelle Zarb [2003] NSW WCC PD 15; WorkCover Authority v Leonard Patrick Riordan [2003] NSW WCC PD 13; Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5. Section 352(1) of the 1998 Act provides that in the circumstances set out, a party may appeal to the Commission constituted by a Presidential member against a “decision” in respect of the dispute by the Commission constituted by an Arbitrator. In this matter a valid decision was not made by the Arbitrator in respect of the payment of the amounts of compensation. Consequently, it is appropriate to refer this matter to the Registrar, to put before the Arbitrator, so that the determination can be properly made according to law. While it is open to the Registrar to refer the matter to an Arbitrator in accordance with her statutory powers to do so, it is appropriate in the instant case for the matter to be allocated to the Arbitrator who purported to make the original decision.
Section 60 – cost of medical or hospital treatment and rehabilitation etc.
The Appellant states in its submission in support of the grounds of appeal:
“There was no evidence and there were no findings regarding the applicant’s section 60 expenses.”
The Application to Resolve a Dispute lodged by the Respondent Worker on 13 September, 2002 did not include any reference to a dispute as to the costs of medical, hospital or rehabilitation. Moreover, this issue was not raised in the proceedings before, nor considered and determined by, the Arbitrator and as a consequence, there is no decision made by the Arbitrator, that I may review, in this appeal.
Formal decision
On the evidence and the weight of the evidence before her, the Arbitrator was correct in finding that the Respondent Worker sustained an injury in the course of her employment on 11 October, 2001 (although at paragraph 31 of her Statement of Reasons the Arbitrator incorrectly stated the date as 11 November, 2001), and that the employment was a substantial contributing factor to the injury. Liability is established.
On the evidence before her, the Arbitrator was correct in finding that the Respondent Worker was totally incapacitated for work as a result of her injuries, from 11 October, 2001. However, the medical certificate referred to above, does not extend beyond 11 February, 2002, and in the proceedings before her, specific periods of incapacity beyond that date were disputed. Nevertheless, it is clear on the totality of the medical evidence that there were periods of incapacity, both total and partial, beyond 11 February, 2002 and it was open to the Arbitrator to make that finding, notwithstanding that she was unable to state precisely what those periods were. Consequently, the only precise period of incapacity in evidence was a period of total incapacity from 11 October, 2001 to 11 February, 2002. Beyond that, the Arbitrator’s determination that payment of compensation should be made on presentation of the appropriate medical certificates is correct, except that the period for which compensation is payable should have been closed at 15 October, 2002, being the last date for payment of compensation claimed by the Respondent Worker. In the circumstances, pursuant to section 352(7) of the 1998 Act, I revoke that part of the Arbitrator’s decision and substitute the following decision:
The Appellant, being the Respondent in the proceedings before the Arbitrator, is to pay to the Respondent Worker, weekly compensation at the rates to be determined according to law, for a period of total incapacity from 11 October, 2001 to 11 February, 2002 and thereafter for periods of total or partial incapacity, on presentation of appropriate medical certificates, up to 15 October, 2002.
For the reasons stated, the purported decision of the Arbitrator concerning the calculation and determination of the amounts of compensation payable to the Respondent Worker is not a valid decision, and the matter is referred to the Registrar for return to the Arbitrator, for a decision to be made by her according to law.

COSTS

No application has been made for costs. No order is made as to costs.

Gary Byron

Deputy President

I certify that that this is a true and accurate record of the reasons for decision of Deputy President Gary Byron, Workers Compensation Commission

Registrar

Date:

[2003] NSWWCCPD 17

20 June 2003