Combined Towing Services Pty Limited v Mastronardo
[2004] NSWWCCPD 20
•16 April 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Combined Towing Services Pty Limited v Mastronardo [2004] NSW WCC PD 20
APPELLANT: Combined Towing Services Pty Limited
RESPONDENT: John Mastronardo
INSURER:CGU Workers Compensation Insurance (NSW) Limited
FILE NUMBER: WCC 8168-2003
DATE OF ARBITRATOR’S DECISION: 4 November 2003
DATE OF APPEAL DECISION: 16 April 2004
SUBJECT MATTER OF DECISION: Injury ‘in the course of employment’; Sections 4 and 9A of the Worker’s Compensation Act 1987; Interval or interlude in employment.
PRESIDENTIAL MEMBER: Deputy President, Dr Gabriel Fleming
HEARING:2 April 2004
REPRESENTATION: Appellant: Leitch Hasson Dent Solicitors
Respondent: Bryden’s Law Office Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 4 November 2003, is revoked and the following decision is made in its place:
The Respondent is not liable for the Applicant’s claim for compensation pursuant to the Workers Compensation Act 1987.
BACKGROUND
On 2 December 2003 Combined Towing Services Pty Limited (‘the Appellant Employer’) filed an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission. The Respondent to the Appeal is John Mastronardo (‘the Respondent Worker’). The relevant insurer is CGU Workers Compensation Insurance (NSW) Limited.
The appeal relates to Mr Mastronardo’s claim for compensation by way of weekly benefits, medical expenses, and lump sum payment for permanent impairment and pain and suffering. Mr Mastronardo claims that his injury arose in the course of his employment with the Appellant Employer as a tow-truck driver. The Appellant Employer denies liability for the claim on the basis that employment was not a ‘substantial contributing factor’ to Mr Mastronardo’s injury.
In proceedings before the Arbitrator the parties asked that the issue of liability be determined before any other issue. On 4 November 2003 a Certificate of Determination and attached Statement of Reasons (‘the Reasons’) were issued, containing the following orders:
1)The Applicant [Worker] received an injury in the course of his employment with the Respondent [Employer] and that employment is a substantial contributing factor to the injury.
2)If compensation is payable, which will be determined on the medical evidence, the Respondent is liable to pay that compensation to the Applicant.
3)Having determined the issues in relation to liability in favour of the Applicant, this matter must be set down for a further teleconference on 24 November 2003 at 9:30am to pursue settlement in relation to the Applicant’s claim for weekly compensation, permanent impairment of the back and legs and pain and suffering.
The Commission cannot make a final determination on Mr Mastronardo’s entitlement to permanent impairment compensation, if any, until the matter has been referred to an Approved Medical Specialist for assessment. This has not yet occurred. Nor has the Arbitrator had an opportunity to attempt to bring the parties to a settlement of the dispute that is acceptable to them. Order 3 above is addressed to facilitating this process. Order 1 is in issue on the appeal.
The matter was referred to me for review on 3 February 2004.
A hearing on the appeal was held on 2 April 2004 at which both parties were represented and further oral submissions were made. The hearing was held at the request of the parties, who took the view that the matter could not be decided ‘on the papers’. However the oral submissions did not extend the content of the written submissions and in my view the hearing was entirely unnecessary.
ISSUES IN DISPUTE
The issues in dispute are:
Did the Arbitrator err in her finding that:
· Mr Mastronardo received an injury in the course of his employment,
· Employment was a substantial contributing factor to the injury,
· Mr Mastronardo’s conduct at the time of the incident that gave rise to the injury did not amount to gross misconduct, and
· Mr Mastronardo had suffered an injury resulting in serious and permanent disablement under section 14(1) of the Worker’s Compensation Act 1987 (‘the 1987 Act’).
LEAVE
The threshold requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) must be met.
In this matter leave to appeal was granted on 9 March 2004 on the basis that I am satisfied that:
·The appeal was filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act),
·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act), and
·No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5).
No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
EVIDENCE AND SUBMISSIONS
The evidence that was before the Arbitrator is also before me on the appeal. This includes a video-tape of the incident featuring footage captured by the Appellant Employer’s security cameras. In addition the written submissions of the parties on the appeal and the transcript of the proceedings before the Arbitrator are before me and have been taken into account in determining the appeal.
There are a number of medical reports that have been submitted by the parties but not yet considered as only the preliminary question of liability has been determined.
The relevant facts are set out in the Reasons and are set out only briefly here. Much of the evidence as to the circumstances of the incident that gave rise to the injury is in dispute. The following was agreed:
·Mr Mastronardo was employed by the Appellant Employer as a tow–truck driver from November 2001 until 26 April 2002. He was based at Alexandria, from which point where he would collect and return the tow truck.
·On 23 April 2002 he was required to attend to a “police roster tow” and returned to the yard around 7.00 pm.
·Some time around 7.00 pm that evening, Mr Mastronardo engaged in a physical altercation with a co-worker, during the course of which he climbed onto the tilt tray of a truck that was standing in the yard of the employer.
·Mr Mastronardo fell from the truck and injured his back, shoulders and neck.
·After the incident Mr Mastronardo drove himself home, and attended work the next day. At the end of his shift, on 24 April 2002, he felt ill and drove himself to Liverpool Hospital where he was diagnosed with fractures of the lower back and neck.
·His employer terminated his employment on 26 April 2002.
·He notified his employer of the injury on 2 May 2002 and provisional payments of weekly compensation were made for the period 24 April 2002 to 30 May 2002.
·The relevant insurer denied liability for the claim on 1 August 2002 on the basis that an investigation of the circumstances of the injury revealed that employment was not a ‘substantial contributing factor’ to the injury.
Mr Mastronardo has given different accounts of his normal working hours. In his statement of 4 June 2002 he stated that his hours of duty were from 7.00 am to 7.00 pm. In his statement of 12 February 2003 he states that his usual work times had been from 7.00 am to 4.30 pm, Monday to Friday. His supervisor, Mr Willis, states that his hours of duty were from 7.00 am to 7.00 pm Monday to Friday.
Different versions of events surrounding Mr Mastronardo’s fall from the truck were presented in the evidence before the Arbitrator. Mr Mastronardo’s own evidence was contradictory. In his statement of 4 June 2002 he says Mr Sparks, his co-worker, was already standing on top of the tilt tray when he, Mr Mastronardo, entered the yard. He states that he climbed onto the tilt tray because he was concerned that Mr Sparks would injure himself. This account was also given in his sworn oral evidence before the Arbitrator. Three co-workers, Messrs Patrick Spiteri, Raymond Spiteri, and Davin Sparks gave evidence. Stephen Willis, Director of the Appellant Employer, also filed a statement. The evidence of the witnesses is summarised in the Arbitrator’s reasons. Mr Sparks conceded that at the time of the incident he was pretending to be a ‘World Championship Wrestler’ and that this type of ‘skylarking’ behaviour was not uncommon at this workplace.
The video evidence does not support Mr Mastronardo’s account. It shows Mr Mastronardo arriving at the yard, going into the office, returning to the yard and engaging in physical contact with Mr Sparks in the yard, before climbing onto the tilt tray after Mr Sparks. While on the tilt tray the two of them engage in what has been called ‘skylarking’ or mock wrestling. The video then shows Mr Mastronardo falling off the truck.
The evidence in relation to whether Mr Mastronardo had returned his keys to the office and was leaving work for the day is also contradictory. The ‘honesty’ system of drivers recording the time of their last job for the day determined the time they finished work. The keys were then handed into the office and the driver would leave. In oral evidence Mr Mastronardo stated that he had not returned his keys at the time of the incident.
On 23 April 2002 Mr Mastronardo remained on site at a time well past the conclusion of his usual shift and after his last (late) job had finished. Mr Mastronardo stated that he was instructed by Stephen Willis to work until 7.00 pm. He also stated that the employer encouraged workers to remain on site in case a tow was needed at the change of shift.
As noted above the Appellant Employer made written and oral submissions on the appeal. The oral submissions narrowed the substantive grounds of appeal upon which the Appellant Employer relied. Essentially, the Appellant Employer submitted that it was not open to the Arbitrator, on the facts found by her, to conclude that Mr Mastronardo’s employment was a substantial contributing factor to his injury. The Appellant Employer submitted (at paragraph 8 of the written submissions dated 2 December 2003) that:
At paragraph 65 of the judgment the Arbitrator incorrectly found that being on the Appellant Employer’s premises at the conclusion of the working day was an activity reasonably incidental to the contract of employment and was encouraged by the Appellant Employer and was therefore a substantial contributing factor to the injury in terms of section 9A of the Workers Compensation Act 1987. A paragraph (sic) 64 the Arbitrator had also observed that to be a substantial contributing factor the employment must be a factor which is ‘more than minimal, large or great’. The Respondent Worker’s injury resulted from a misadventure while mock wrestling or ‘skylarking’. The Arbitrator accepted (at paragraph 58) that neither the Respondent Worker nor Mr Sparks were engaged in activities directly related to their employment in this activity. Furthermore, at paragraph 68, the Arbitrator also observed that the skylarking was not for the benefit of the employer. She did not accept the Respondent Worker’s evidence that he was on the tilt tray to encourage Mr Sparks to get down and not injure himself. Against this background, the Appellant Employer submits that the worker’s employment was not a substantial contributing factor to the injury he sustained.
DISCUSSION AND FINDINGS
‘Injury arising out of or in the course of employment’
The phrase ‘arising out of . . employment’ connotes a causal connection between the work and the injury (Nunan v Cockatoo Docks & Engineering Co Pty Ltd [1941] 41 SR (NSW) 119). This may be contrasted with the concept of an injury that occurs ‘in the course of employment’, connoting a temporal connection between the injury and the employment (Hatzimanolis v ANI Corporation Limited [1992] 173 CLR 473 (‘Hatzimanolis’)).
The Arbitrator applied the principles laid down in the leading case of Hatzimanolis to this case. She set out in her Reasons the relevant passage of that decision, which is as follows:
“ It should now be accepted that 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.”
The Arbitrator’s findings of fact were critical to her determination that Mr Mastronardo had suffered an injury ‘in the course of employment’ as required by section 4 of the 1987 Act. She found that:
· Mr Mastronardo had returned the keys to the truck to the office prior to the incident (at paragraphs 30 and 49 of the Reasons);
· Mr Mastronardo “had done all things required to signify that he had completed his shift for the day. He was in the process of leaving the premises when the incident occurred” (at paragraph 49 of the Reasons);
· Mr Mastronardo was not trying to prevent Mr Sparks from injuring himself when he fell off the truck. He was “. . . engaged with Mr Sparks in some of the ‘skylarking’ that was going on in the yard that evening” (at paragraph 45 of the Reasons);
· Mr Mastronardo was not waiting for “. . . further job opportunities . . .and . . had ceased work at the time of the incident”;
· The employer encouraged workers to “. . . stay behind at the end of their shifts in order to be able to support any jobs which were called prior to the start of the next shift” (at paragraph 55 of the Reasons);
· The employer encouraged the workers to spend the time at the conclusion of their shift in the yard, in case there was a demand for tow-trucks after hours, however the employer did not encourage workers to spend the time between shifts ‘skylarking’ (at paragraphs 55-58 of the Reasons); and
· Mr Mastronardo’s conduct, in ‘skylarking’, did not amount to gross misconduct so as to disentitle him to workers compensation (at paragraph 61 of the Reasons).
There is some difficulty with the application of the principles that arise from the case of Hatzimanolis to the facts of this case. It is not clear that this is a case where, on the facts found by the Arbitrator, the injury occurred in an ‘interval or interlude’ in an overall period or episode of employment. Mr Mastronardo’s evidence was that he worked a set shift each day, which was extended on this particular day because of a late call-out. However on returning to the yard after this late call-out, and returning the keys to the truck, his employment for the day had ceased. The Arbitrator found that he “. . .had returned the keys and done all things required to signify that he had completed his shift for the day” (paragraph 49 of the Reasons).
The Appellant Employer does not challenge the Arbitrator’s fact finding in any significant way and I see no reason to disturb her findings of fact. There are clearly two different ways to consider Mr Mastronardo’s employment situation at the time of the incident that gave rise to the injury. It was either a particular, discreet working shift (7.00 am–7.00 pm) completed at the end of each day (signified by the return of the keys to the truck and necessary ‘paperwork’), to start again the next, or an interval in an overall period of employment that included remaining at the site when his regular shift had finished (see Stojkovic v Telford Management Pty Ltd [1998] 16 NSW CCR 165, Fluor Daniel Constructors Pty Ltd v Zurich Australian Insurance Ltd [2002] WASCA 218 (5 August 2002)).
It is a difficult, and mixed, question of fact and law, for determination by the Arbitrator. On balance, I find that the Arbitrator, in this matter, did not err in finding that Mr Mastronardo’s injury arose “in the course of his employment”, for the purposes of section 4 of the 1987 Act. While Mr Mastronardo had technically ceased work, in the sense that his shift had finished, he remained in the course of his employment, on the application of the principles found in Hatzimanolis.
‘Substantial Contributing Factor’
It remains for the Appellant Employer to demonstrate that the Arbitrator erred in finding that Mr Mastronardo’s employment was a “substantial contributing factor” to his injury, pursuant to section 9A of the 1987 Act.
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 worker’s 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.
The Arbitrator’s findings on this issue are brief and do not specifically address the matters set out in section 9A of the 1987 Act. The Arbitrator correctly refers to the Court of Appeal decision of Mercer v ANZ Banking Group (2000) NSWCA 138 and to the fact that “there may be more than one contributing factor but that employment must be a factor which is ‘more than minimal, large or great’.” She then states, at paragraphs 65 of the Reasons, that:
I have reviewed the submissions on this issue from both the Applicant and the Respondent. The term ‘employment’ in s.9A includes matters naturally incidental to the contract of employment: Neilsen J in Stanton Cook v TAFE Commission of NSW (1999) 17 NSWCCR 632 at 637. In the circumstances of this case I find that the Applicant was engaged in activities at the premises of the Respondent and being on the premises at the conclusion of the working day was an activity reasonably incidental to the contract of employment and was encouraged by the Respondent. In these circumstances I find that the employment was a substantial contributing factor to the injury.
It is insufficient, for the purpose of section 9A of the 1987 Act, to prove that the employee was injured in the course of employment. A causal relationship must be established between the actual work activity the worker was engaged in at the time of the injury, and the injury itself (Stanton-Cook v TAFE Commission (NSW) [1999] 17 NSWCCR 632). As Mason P, said in Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740;
. . . the words ‘employment concerned’ in 9A reinforce the view that it is the work activity in which the worker was engaged at the time of the 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 sub ss (2) and (3) of s9A.
The question of what is a ‘substantial’ contributing factor is a matter for determination in the individual circumstances of each case. ‘Employment’ will include matters incidental to the performance of the actual duties of the employee (Muscat v Woolworths Ltd [2000] NSWCC 16).
Taking these principles into account, I turn to the factors set out in section 9A(2) of the 1987 Act, and make the following findings;
(1)The time and place of the injury. The injury occurred at around 7.00 pm on the night of 23 April 2002 at Mr Mastronado’s place of work, namely the Alexandria truck garage.
(2)The nature of the work performed and the particular tasks of that work. The Arbitrator found, as a question of fact, that Mr Mastronardo had returned his truck keys to the office and had ceased work for the day before the injury occurred. This finding is not challenged, nor overturned, on review. It follows from these findings that Mr Mastronardo was not performing any work, or particular tasks incidental to his work, when he engaged in what has been termed ‘skylarking’ with another worker on the back of a truck parked in the lot, and then fell and injured himself. It is clear from the evidence that he voluntarily entered into this behaviour with another worker. His work involved driving a tow truck, and returning it to the Alexandria base. The injury did not occur when he was involved in a work activity.
(3)The duration of the employment. Mr Mastronardo had been employed by the Appellant Employer from November 2001 until his employment was terminated in April 2002, shortly after his injury. The duration of his employment is not a relevant factor to his injury.
(4)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. Mr Mastronardo’s injuries were suffered as a result of a fall from a truck onto hard ground, they are not such that they would likely to have occurred at this time in his life for other reasons. The evidence is that the ‘skylarking’ around the trucks, which led to the injury, was not uncommon with drivers in the yard at the change of shift. It is clearly unlikely that Mr Mastronardo would have had such a serious fall in other circumstances, because of the particular dangers that ‘skylarking’ on the back of a tow truck presented.
(5)The worker’s state of health before the injury and the existence of any heriditary risks. This is not relevant to this case.
(6)The worker’s lifestyle and his or her activities outside the workplace. Mr Mastronardo’s lifestyle did not contribute to his injury.
The Appellant Employer asserts that the only relationship between Mr Mastronardo’s injury and his employment is the location of the incident. This, says the Appellant Employer, is not sufficient to meet the statutory test set out in section 9A of the 1987 Act and so the Arbitrator erred in making a positive finding that section 9A was satisfied. Having considered the factors set out in section 9A, I agree with the Appellant Employer’s submission.
The only connection established by the Arbitrator between Mr Mastronardo’s injury and his employment, was that he was at the Alexandria yard when he fell from the truck. This is not a sufficient causal connection for the purpose of section 9A (Stanton-Cook v TAFE Commission (NSW) 17 NSWCCR 632). At the time of the injury Mr Mastronardo had not been undertaking a task that was, in any way, directly related to, or incidental to, his contract of employment. On the facts found by the Arbitrator, the behaviour was not condoned by the Employer. The Arbitrator found that “. . . the Respondent did not encourage the Applicant nor the other workers to spend their time between jobs ‘skylarking’” (paragraph 56 of the Reasons).
In my view Mr Mastronardo’s employment was not a substantial contributing factor to his injury, for the purposes of section 9A of the 1987 Act.
Having made this finding it is not necessary to consider the issues that arise under section 14 of the 1987 Act.
DECISION
The decision of the Arbitrator is revoked and the following decision is made in its place:
The Respondent is not liable for the Applicant’s claim for compensation pursuant to the Workers Compensation Act 1987.
Dr Gabriel Fleming
Deputy President 16 April 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
2
0