Hogno v Fairfax Regional Printers Pty Limited
[2009] NSWWCCPD 33
•27 March 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Hogno v Fairfax Regional Printers Pty Limited [2009] NSWWCCPD 33 | |||||
| APPELLANT: | John Hogno | |||||
| RESPONDENT: | Fairfax Regional Printers Pty Limited | |||||
| INSURER: | CGU Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | A1-006298/08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 27 Novemebr 2008 | |||||
| DATE OF APPEAL DECISION: | 27 March 2009 | |||||
| SUBJECT MATTER OF DECISION: | Section 10 of the Workers Compensation Act 1987; journey claim; section 9A of the 1987 Act and substantial contributing factor | |||||
| PRESIDENTIAL MEMBER: | His Hon. Judge Keating, President | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | FatchesJones Lawyers | ||||
| Respondent: | Hicksons Lawyers | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 27 November 2008, is revoked and the following decision made: “(1) The Respondent pay the Applicant’s section 60 expenses upon production of accounts and receipts. (2) The matter is referred to the Registrar for referral to an Approved Medical Specialist for the assessment of permanent impairment under section 66 of the Workers Compensation Act 1987 Act in respect of the injury to the right knee on 22 May 2006. (3) The Respondent pay the Applicant’s costs as agreed or assessed. The matter is certified complex with an uplift of 10%.” The Respondent pay the Appellant’s costs of the appeal. | |||||
INTRODUCTION
After he arrived at work and parked in the work car park, Mr Hogno injured his right knee when it twisted as he was alighting from his car. His claim for compensation failed on the basis that the injury was not sustained whilst he was on a periodic journey, and, whilst the Arbitrator found that he was injured during the course of his employment, his employment was not a substantial contributing factor to the injury.
Mr Hogno appeals that decision.
BACKGROUND TO THE APPEAL
On 24 December 2008, Mr Hogno (‘the Appellant/Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 27 November 2008.
The Respondent to the Appeal is Fairfax Regional Printers Pty Limited (‘Fairfax/Respondent/Employer’).
Mr Hogno worked as a forklift driver/plant operator with the Respondent. His work was reasonably heavy and involved the manoeuvring of large paper rolls into position at the press. He alleges that on 22 May 2006, he injured his right knee when it twisted, as he was getting out of his car.
Mr Hogno submitted a claim for compensation. CGU Workers Compensation (NSW) Ltd (‘CGU’), disputed liability by way of letters dated 1 August 2006 and 2 November 2006 on two bases. Firstly, that the Worker was not on a periodic journey because the journey had ceased once Mr Hogno arrived at the work car park. Secondly his employment was not a substantial contributing factor to the injury under section 9A(2)(a) and (d) of the Workers Compensation Act 1987 (‘the 1987 Act’) as the injury could have occurred outside the work situation.
On 13 August 2008, Mr Hogno filed an Application to Resolve a Dispute in the Commission. He claimed lump sum compensation under section 66 of $5000.00 in respect of 4% whole person impairment and $1,548.24 in medical expenses arising from the injury to his right knee on 22 May 2006.
Fairfax filed a Reply on 10 September 2008, under cover of an Application to Admit Late Documents.
The matter proceeded to a conciliation/arbitration on 11 November 2008. The parties were unable to settle the claim and the matter proceeded to an arbitration hearing. The Arbitrator reserved his decision and issued a Certificate of Determination and written Statement of Reasons (‘Reasons’) on 27 November 2008. It is from this decision that the Appellant now seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 27 November 2008 records the Arbitrator’s orders as follows:
“1. Award for the Respondent in respect of the Applicant’s claim.
2. That the Respondent pay the Applicant’s costs as agreed or assessed. I certify the matter complex with an uplift to the Applicant and Respondent of 10%.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator misdirected himself in relation to:
(a) the journey provisions in section 10 of the1987 Act and erred in finding that the Worker’s journey had ceased when he crossed the boundary of the Employer’s property, (journey- section 10) and
(b) the application of section 9A of the 1987 Act and erred in finding that the Worker’s employment was not a substantial contributing factor to the injury (section 9A).
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged on 24 December 2008, within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The monetary thresholds in section 352(2) (a) and (b) are met.
Leave to appeal is granted.
FRESH EVIDENCE
Neither party seeks to rely on fresh or additional evidence on appeal.
REVIEW
The nature of the ‘review’ under section 352(5) of the 1998 Act was considered by the Court of Appeal in Aluminium Louvres & Ceiling Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358. In his leading judgment Bryson JA (with whom Handley JA and Bell J agreed) said at [38]:
“38.A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v R (1936) 55 CLR 499 at 504 ‑ 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member….”
The concept of ‘review’ was again considered by the Court of Appeal in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 (‘Chemler’), where, Spigelman CJ (with whom Basten JA and Bryson AJA agreed) observed at [28] and [30]:
“28.The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30.A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit …”
In the decision of Tan v National Australia Bank Limited [2008] NSWCA 198, Basten JA noted at [12]:
“The fact that the term ‘appeal’ may refer to a hearing de novo, the fact that the appeal is described as one ‘by way of review’, together with the largely unlimited discretion conferred on the Deputy President as to the manner in which the appeal will be conducted and the broad powers, including the power to make a ‘new decision’ in place of that subject to appeal, all tend to confirm that the Deputy President may conduct a fresh hearing and is not constrained to intervene only if satisfied that the decision of the Arbitrator was effected by identifiable error.”
I propose to apply these principles in the matter before me.
EVIDENCE
Mr Hogno relied on a signed statement of evidence dated 1 August 2008. He commenced work with Fairfax on 30 January 2000. He first injured his left knee on or around 14 April 2000, when he stood on a turntable and twisted his knee. Throughout late 2005, and early 2006, he experienced a gradual deterioration in his left knee. He believed the nature and conditions of his employment caused the deterioration. CGU accepted liability for the injury to his left knee.
On 22 May 2006, he injured his right knee (the injury at issue in this appeal), when his right knee twisted as he was getting out of his car at work. He felt sudden sharp, stabbing pain. CGU denied liability for this injury.
His knees deteriorated. On 31 October 2006, he underwent arthroscopic surgery on both knees. Following the surgery he continued to experience knee pain and Dr Reece, treating orthopaedic surgeon, recommended that he loose weight.
After the surgery Mr Hogno was unfit for work for a couple of weeks, and then returned to work with the restriction of a 30-minute break each shift. The rehabilitation provider modified this in June 2007, when Mr Hogno was placed on the reel stand. Mr McKie, the rehabilitation coordinator, believed that Mr Hogno would have a two-hour break each shift working on the reel stand and therefore he no longer needed the 30-minute break each shift. Mr Hogno disputed this, claiming that any breaks whilst using the reel stand were in short periods of about five minutes only.
Mr Hogno complained of increasing pain throughout 2007, resulting in the need to take regular analgesic medication. At the end of his work shifts the pain was much worse than at the end of the shifts when he was able to take a 30-minute break.
Dr Walker reported on an MRI of the right knee dated 9 June 2006. He noted a complex horizontal tear to the posterior horn of the medial meniscus and petellofemoral chondromalacia with patella cartilage loss of the lateral facet.
Dr Stephenson, general practitioner, in a letter of referral to Dr Reece, dated 22 May 2006, noted that Dr Reece had previously examined Mr Hogno in relation to his left knee, but he was referred because he had injured his right knee earlier in the day, when he pivoted getting out of his car and experienced immediate right knee pain.
Dr Reece, in a report dated 15 June 2006, addressed to CGU, stated that the right knee meniscal tear was “…an acute tear which occurred on the day of his injury due to the effusion that has gone with this.”
Dr Reece, in a further report dated 15 June 2006, addressed to CGU, stated that she had examined Mr Hogno on 15 June 2006 and an MRI scan confirmed the presence of a torn medial meniscus. She noted:
“There are some underlying degenerative changes in the meniscus which have allowed the tear to occur with a simple twist. I believe that this is an acute tear into the meniscus because of the effusion in the knee which goes with the acute injury.”
Dr Reece prepared two operation reports dated 31 October 2006 and 1 November 2006 in identical form. She records that she undertook an arthroscopy on both knees on 31 October 2006. She debrided medial meniscal tears in both knees and the report also noted that there were grade 2 to 3 changes in the medial compartment of the right knee and grade 3 to 4 changes in the medial compartment of the left knee.
In a report dated 10 November 2006, Dr Reece noted that following the arthroscopy of both knees, the changes in his right knee were not as severe as the changes in his left knee. She performed a partial meniscectomy on both knees.
Dr Price, occupational physician, prepared a report dated 24 May 2006 at the request of CGU. The doctor recorded a consistent history of the injury to Mr Hogno’s right knee on 22 May 2006. He diagnosed internal derangement of the right knee and a possible tear of the anterior cruciate ligament and sprain of his medial collateral ligament. The doctor noted that the Worker had previously suffered injury to his left knee for which he had undergone surgical treatment and had returned to work with occasional pain and instability of the left knee. Mr Hogno reported to Dr Price, that he had occasional pain in his right knee prior to the injury on 22 May 2006.
Mr Hogno also relied on medico-legal reports from Dr Millons, orthopaedic surgeon, dated 13 October 2006 and 16 October 2007 (x2).
In his report dated 13 October 2006, Dr Millons noted that Mr Hogno worked twenty years in the military, initially nursing, and later as an aircraft refueller. He worked for four months as a truck driver before commencing as a forklift driver/plant operator with Fairfax, where he has worked for the last seven years. Mr Hogno said he was fit when he left the RAAF and weighed 127kg. His weight had increased to 160kg.
Dr Millons noted that in April 2000, Mr Hogno tripped on a turntable whilst walking and carrying wastepaper. He subsequently underwent three arthroscopies on his left knee but did not have a good result from the surgery. At the time of Dr Millons examination Mr Hogno was due for a further arthroscopy on 31 October 2006.
In relation to the right knee, Dr Millons recorded that at a time when Mr Hogno was working ten-hour night shifts, one day in December 2005, he awoke with a swollen right knee. He consulted the work doctor and was advised that the condition was degenerative and not work related. He continued to work without treatment and his knee did not stop him from working.
Dr Millons recorded that on 22 May 2006, that Mr Hogno stepped out of his car, turned to stand up and felt pain in his right knee. He was not able to work for more than 10 minutes before he consulted the work doctor. Mr Hogno attended Dr Reece, was put off work and later resumed work on light duties.
Dr Millons noted that Mr Hogno had been performing his normal duties for the last couple of months but avoided kneeling and squatting. Dr Millons also noted that the Worker had an 80km round trip to work, which aggravated his symptoms, as did climbing the stairs to the change room and crib room.
Dr Millons was of the opinion that Mr Hogno had longstanding problems in his left knee dating from April 2000. He noted the clinical and radiological evidence of degenerative changes and that Mr Hogno was due for further debridment surgery. Dr Millons considered the left knee problems appeared to be work related. He noted that Mr Hogno had had x-rays of his right knee in November 2005, which showed slight narrowing of the medial compartment and irregularity on the lateral facet of the patella. Dr Millons considered that the x-rays demonstrated minimal degenerative changes. He stated, “No doubt there were degenerative changes going on and his huge size would have been playing a part in that wear process.”
Dr Millons believed that Mr Hogno may have “nipped” or torn his meniscus when he stepped out of the car and twisted in May 2006. In terms of his opinion as to the contribution to the injury from Mr Hogno’s employment he said at page 7:
“On the history that he gives Mr Hogno’s employment does appear to have been a substantial contributing factor in both knees and particularly the right knee as a result of the incident in the car park on 22 May 2006.”
In his report dated 16 October 2007, Dr Millons noted the Worker was referred for an examination of, and report on, both his knees. He noted that on 24 January 2002, Mr Hogno was “deemed to have” a 20% permanent loss of efficient use of the left leg at or above the knee and claimed that his left knee condition had deteriorated. The doctor noted that since he had last examined Mr Hogno he had undergone arthroscopic surgery performed by Dr Reece. He reported some improvement in his left knee since the surgery. It was less painful and clicking less. He had returned to work on a graded return to work plan and was avoiding stairs, kneeling and squatting. He complained that his left knee troubled him more than his right knee.
In respect of his right knee, Mr Hogno also reported to Dr Millons that the arthroscopic surgery performed by Dr Reece had improved his right knee. Dr Millons noted that he had returned to work, but interpersonal issues at work had developed and his employment was terminated a week ago. Mr Hogno also complained of lower back pain, which he attributed to his posture as a result of his knee problems.
Dr Millons noted that Mr Hogno had some minimal, constitutionally based degenerative changes in his right knee. He believed that the meniscal tear demonstrated on MRI may have resulted from him taking his weight on his knee when he twisted getting out of his car. The doctor prognosed that Mr Hogno’s condition was guarded. Dr Millons concluded at page 6:
“A low level of continuing symptoms would appear likely, such is the nature of degenerate change.”
Dr Millons assessed 4% whole person impairment as a result of his right knee condition.
The letter from CGU dated 1 August 2006, declining liability, (see [6] above), noted that the decision to decline liability was based on Dr Sage’s (orthopaedic surgeon) reports dated 30 May 2006 and 31 July 2006. Copies of these reports were not attached to the letter but an invitation was extended to Mr Hogno to request copies of the reports.
CGU’s letter dated 2 November 2006, reviewed the decision declining liability and confirmed that the dispute as to liability was maintained. Reliance was placed on the reports of Dr Sage dated 30 May 2006 (x2), 17 July 2006 and 31 July 2006, the Worker’s statement dated 29 May 2006, Dr Walker’s MRI scan report date 9 June 2006, the employee’s claim form and Dr Millons’ report dated 13 October 2006. Copies of these documents were noted in the letter as being attached to it (see letter dated 2 November 2006, page 2).
Whilst the report of Dr Millons dated 13 October 2006, Dr Walker’s MRI scan report dated 9 June 2006, the Worker’s statement dated 29 May 2006 and the employee’s claim form were in evidence, neither party tendered any of Dr Sage’s reports.
DISCUSSION AND FINDINGS
Journey-Section 10
The Arbitrator found that, having crossed the boundary of the Employer’s property, Mr Hogno was not injured on a periodic journey under section 10 of the 1987 Act. He found the facts of the case were analogous to those in Chawla v Transgrid (11 June 2002) (Matter no. 38010/01 unreported Burke CCJ) (‘Chawla’) and Musumeci v Gem Engines Pty Ltd (2002) 23 NSWCCR 128 (‘Musumeci’), Reasons at [12]-[18]).
On appeal the Appellant submits that:
(a) The Arbitrator erred in relying on Calvert v Soden (1994)10 NSWCCR 139 (‘Calvert’), Musumeci and Chawla because they are factually different and claims arising from journeys must each be decided upon their own facts and not according to prior decisions.
(b) In Chawla and Musumeci, the Worker had alighted from and was clear of the vehicle when injury was sustained.
(c) Calvert is not relevant because it concerned the definition of ‘place of abode’ not ‘place of employment’.
(d) The principle derived from Calvert and the other cited authorities is that section 10 “is to afford protection against injury sustained by workers whilst a traveller or wayfarer”.
(e) Mr Hogno was alighting from his vehicle at the time of injury and therefore his journey had not completed at the time he was injured.
In reply the Respondent submits:
(a)At the time of the injury, the Worker was in the work car park, inside the boundary of the Employer’s property, where the workplace is situated and the Worker was therefore not on a periodic journey between his place of abode and place of employment.
(b)Reliance is placed on Chawla where Burke ACCJ said at [16]:
“absent any definition of either ‘place of abode’ or ‘place of employment’ I would think general principle would indicate the legal boundaries of either property defining their ambits.”
(c)Reliance is also placed on Musumeci where Quirk CCJ held that cases involving a daily or other periodic journey must have a starting point and an end point in temporal terms, and cannot be artificially extended to when the worker actually commences his daily labours even though he has arrived at his ‘place of employment’”.
In considering the application of section 10 of the 1987 Act, the Arbitrator correctly pointed out, that section 10(4) of the 1987 Act, defines when a journey from a worker’s place of abode commences. It commences at the boundary of the land on which the worker’s place of abode is situated, but there is no similar definition of when the journey ends. The term of “place of employment” was defined in the Workers Compensation Act 1926 (‘the 1926 Act’) as “the premises, works, plant or place for the time being occupied by or under the control or management of the employer by whom the worker concerned is employed, and on or at or in connection with which the worker was employed at the time of the injury”.
As recently observed by Deputy President Roche in NSW Police Force v Cox [2009] NSWWCCPD 20 at [114], ‘place of employment’ is often not a fixed geographical location. Depending on the terms of the contract of employment, a worker’s place of employment can be anywhere the employer requires the worker perform his duties, or, engage in activities that are incidental to those duties.
In Musumeci, Quirk CCJ found that a worker injured in an altercation in the car park of his employer’s premises had completed his journey, even though he had not yet “bundied on” for his day’s work and had not reached the building in which he was to perform his activities. Her Honour considered a number of cases dealing with the interpretation of the phrase “place of employment” including Russell v Sydney City Council [1967] 41 WCR (NSW) 68 (‘Russell’); Young v Albury and Boarder Pastoral, Agricultural, Horticultural and Industrial Society [1932] WCR (NSW) 201(‘Young’), and Williams v Ducon Condenser Ltd [1949] 23 WCR (NSW) 122 (‘Williams’)
In Russell, it was held that a worker injured leaving a technical college, but before he had reached the public street, had not commenced his journey within the terms of the journey provisions of the 1926 Act. In that case Gibson J said:
“…it cannot be said that his journey from that place had commenced until such time as he had emerged onto the public street adjacent to the school.”
In Young, a worker having left the office premises where she worked as a secretary was injured on a marble stairway leading to the exit of the building. It was held in that case that when the injury occurred the worker was still on the employer’s premises because she had not reached the public highway.
In Williams, the worker failed in her claim for compensation when she was injured whilst riding a bicycle home from work. She lost control of her bicycle when it passed over an uneven surface outside a gate of her home. She received injuries by falling on the driveway inside the gate. The worker was unsuccessful because she did not receive injury until she hit the ground inside her place of abode. The provisions of the 1926 Act with which the court was concerned in Williams (sections 7(1)(c)(i) and (ii)) are in substantially identical terms with section 10(3)(a) and (b) of the 1987 Act. Rainbow J, referring to the 1926 Act said:
“The preposition ‘between’ paragraph (c) of s 7(1) connotes motion from one place to another and the places are specified as being her place of employment and her place of abode. The Act indicates that there is a beginning and end of a journey, and a finishing point in this case is, as paragraph (i) says, the worker’s place of abode.”
Rainbow J, later dealing with the ambit of a journey said at [125]:
“Again, if some known point did not define the commencement or end of the journey, it would be difficult to know whether a defence of default would apply, or whether a defence of serious and wilful misconduct in the course of employment was to be considered.”
At [126], Rainbow J said:
“The worker must receive injury, i.e. physiological harm must occur, in the space between the two points that I have indicated, namely, between the boundary of the home premises and the boundary of the employer’s premises.”
After reviewing the above cited cases in Musumeci, Quirk CCJ concluded at [18]:
“The point of all these cases seems to me that a journey must have a starting point and an end point in temporal terms, and cannot, in a difficult case such as this be artificially extended to when the worker actually commences his daily labours, even though he has arrived at his ‘place of employment’”.
The Respondent relies on an unreported Compensation Court decision of Burke ACCJ, in Chawla. In that case the worker was in the employee’s designated car park, which was seventy to one hundred metres short of the administration building where he worked in an administrative position. Having parked the car, he alighted from his vehicle, walked a short distance towards the office and suddenly felt an acute pain in the area behind his left knee and calf. The worker submitted, as in this case, that he was not at work when he arrived at the property of the employer and that the car park was not his place of employment, it was not where he worked.
Burke ACCJ concluded (at [12]):
“Since there is no longer any definition of ‘place of employment’ this matter falls to be determined on general principles”.
He went on at [16] to say:
“Absent any definition of either ‘place of abode’ or ‘place of employment’ I would think general principle would indicate the legal boundaries of their property as defining their ambits.”
At [17], he held:
“On general principle I would believe that the place of employment is reached or left upon crossing the boundary of the land upon which the workplace is situate. That being so I would believe that at the time of injury the applicant, having reached, and passed, a terminus, was no longer ‘on’ a journey and was not ‘between’ his place of abode and his place of employment.”
At [18] his Honour adopted and agreed with the reasoning of Quirk J in Musumeci.
The case of Calvert was raised in argument before the Arbitrator and is touched upon by the Appellant in his submissions. As the Appellant correctly observes, Calvert’s case was concerned with the construction of the phrase “place of abode” as defined by section 10(4) of the 1987 Act. It is difficult to extract any statement of principle from Calvert which will assist in elucidating the issues in this case, other than as the Appellant asserts, that the purpose of section 10 is to afford protection against injury sustained by a worker whilst a “traveller or wayfarer”.
Mr Hogno submits he was in the process of alighting from his vehicle when he sustained the injury, and therefore his journey had not been completed at the time he sustained injury and he should be afforded the statutory entitlement to compensation. The Appellant seeks to draw a distinction between the facts in his case, and those in Chawla and Musumeci, on the basis that in both those cases the workers had alighted from their vehicles and were “clear of their vehicles when they sustained injury”. The Appellant’s counsel did not develop the submission, as to what, if anything, turned on the distinction, including whether it meant that the journey does not end until the worker has alighted the vehicle, or that it ends when he enters the building or place at which his duties are carried out? No authority was advanced for any of these propositions, nor am I aware of any authority that would support them. Whether the incident occurred whilst Mr Hogno was alighting the vehicle, or immediately after he alighted the vehicle, does not in my view assist in determining the issue.
In the absence of any evidence to the contrary, I infer that when Mr Hogno arrived at his place of employment on 22 May 2006, it was for the purpose of undertaking his duties as required and that that was always his intention. This is consistent with Mr Hogno’s evidence in his statement at [5]:
“On 22 May 2006, I injured my right knee when I exited my vehicle upon arriving at work.”
The decision in Singh v Thompson Health Care Pty Ltd [2009] NSWWCCPD 11 (30 January 2009) (‘Singh’) was published after the submissions on this appeal were filed. As I indicated at [91] in Singh, the facts in that case were distinguishable from the facts dealt with by Quirk J in Musumeci. Mr Singh’s case turned largely on his intention to travel to the local shops, via his place of employment, to purchase and eat his evening meal before returning to his place of employment to commence work an hour later. I held in Singh that although Mr Singh had crossed the boundary of his place of employment, parked his car and deposited certain goods in his locker he remained on a daily or other periodic journey when he was attacked at the local shops. Singh was decided on its own particular facts, consistent with the general principles stated in that decision.
In Vetter v Lake Macquarie City Council [2001] 202 CLR 439; 178 ALR 578 the High Court at [81] and [86] emphasised the role played of the intention of the worker derived from the evidence or from an absence of evidence to satisfy the requirements of a “journey” within the meaning of section 10 of the 1987 Act. (See also Blume v H T Reading Pty Ltd [1969] WCR (NSW) 169 and Uibo v Department of Education [1696] WCR (NSW) 219).
I agree with the Arbitrator’s finding, that Mr Hogno having sustained injury after he crossed the boundary of his place of employment was not injured on a journey within the meaning of section 10(3)(a) of the 1987 Act.
Substantial contributing factor-Section 9A
The Arbitrator found that the injury “arose during the course of employment” (Reasons [34]), but pursuant to section 9A of the 1987 Act, Mr Hogno’s employment was not a substantial contributing factor to the injury. Mr Hogno failed to establish a sufficient nexus between his presence in the car park and his work to prove his work was a substantial contributing factor to the injury (Reasons at [32]).
The Appellant, Mr Hogno submits:
(a)The Arbitrator failed to have regard to Muscat v Woolworths Ltd (2000) 20 NSWCCR 16, (‘Muscat’) where Neilson CCJ held that ‘employment’ as used in section 9A includes matters incidental or ancillary to the employment.
(b)The Appellant quoted Neilson CCJ in Muscat at [16] as follows:
“…the Court of Appeal…[in Mercer v ANZ Banking Group (citation omitted)]…has determined that it is sufficient that the injury arise in the course of the employment, but has some casual connection with the employment less than that arising out of the employment.”
(c)The Appellant was making “reasonable and permitted use” of the car park in parking his car prior to staring work. There was the necessary casual relationship between his injury and his employment and injury arose out of his employment and therefore the Appellant has discharged his onus.
The Respondent submits:
(a)The Arbitrator found that section 9A was not satisfied because:
(i)there was not a sufficient nexus between the presence in the car park and work (Reasons at [32]);
(ii)the probability of the injury occurring at or about the same time and stage of the Worker’s life, whether at work or not at work (Reasons at 33], and
(iii)the Worker’s state of health before the injury and the existence of hereditary factors (Reasons at [33]).
(b) The Appellant’s submissions only relate to (i) above (the question of nexus) and, therefore, even if successful on appeal on this issue, the Arbitrator’s findings in (ii) and (iii) establish employment was not a substantial contributing factor.
(c) The principle that the term ‘employment’ in section 9A includes incidental or ancillary matters appeared in Stanton-Cook v TAFE Commission (NSW) (1999) 17 NSWCCR 632 (‘Stanton-Cook’) and was not new to Muscat.
(d) The Arbitrator was correct to find that the fact that the injury occurred on the Employer’s property does not establish employment as a substantial contributing factor. The presence in the car park did not establish the necessary nexus to establish that work was a substantial contributing factor to the injury. Reliance is placed on Bi-Lo Pty Ltd v Saunders [2007] NSWWCCPD 235, where I said (at [45]):
“The fact that a worker is ‘in the course of’ his or her employment at the time of injury does not satisfy the test in section 9A. In ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257 (‘Perry’) at [17] the President said:
‘Nothing in those cases suggested that section 9A is satisfied merely because the injury arose out of the or in the course of employment, nor does Mercer. 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 a substantial contributing factor’.”
Having agreed with the Arbitrator’s findings and determination that Mr Hogno was not on a journey to which the provisions of section 10 of the 1987 Act applied at the time of his alleged injury, but, that injury occurred at a time when Mr Hogno was engaged in an activity that was incidental to his employment, it is necessary to consider whether the provisions of section 9A of the 1987 Act are satisfied.
Section 9A of the 1987 Act reads:
“9A No compensation payable unless employment substantial contributing factor to injury
No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
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.
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.
In the second reading speech, Legislative Council on 26 November 1996, page 6501-10, the Attorney General said, with respect to the introduction of section 9A:
“Turning to the details of this package, the bill will limit compensation coverage to situations where employment is a substantial contributing factor to the worker’s injury or disease. This is in line with the primary objective of compensating workers who suffer injuries that have a proper link with the workplace, rather than those whose injuries have only a remote or tenuous connection with work. The amendments specify that the weaker test of considering whether an injury arose out of or in the course of employment will no longer be enough by itself. Questions relevant to whether the employment was a substantial contributing factor in a worker’s injury can include the time and place of the injury, the nature and duration of the work, whether it was merely a coincidence that the injury occurred at work, and the extent of any non‑employment contributing factors” (emphasis added).
The Appellant submits that because Mr Hogno’s injury occurred during a time when he was making a reasonable and permitted use of the car park prior to the commencement of his duties, he was engaged in an activity that was incidental to his employment. The Appellant submits that created a ‘causal relationship’ such that the injury could be said to arise out of his employment, which was sufficient to satisfy the “substantial contributing factor” test in section 9A(1). This submission is in my view misconceived. Nevertheless I have come to the view that the provisions of section 9A have been satisfied, but for different reason.
In ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257 Mason P at [17] said; “The parties agree that the last sentence misapplies the reasoning in Healey and Muscat. Nothing in those cases suggested that s9A is satisfied merely because the injury arose out of or in the course of employment. Nor does Mercer. 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 a finding of substantial contributing factor”. See also Le Brocq v Workcover [2008] NSWCA 125 (2 June 2008).
The fact that an injury occurs in the course of or arising out of employment may be relevant to whether section 9A is satisfied but it is not determinative (see Supair Pty Ltd v Sweeney (2000) 20 NSWCCR 514 per Meagher J at [9]).
The term “employment” in section 9A extends to matters that are incidental to the contract of employment (see Stanton-Cook and Stewart v New South Wales Police Service (1998) 17 NSWCCR 202). In Stanton-Cook, the worker failed to establish that when injured in the car park of her employer’s premises she was undertaking an activity that was incidental to her employment, as she was there for a personal reason and not to carry out her work or anything incidental to it.
In Muscat the worker was injured when she was scolded when boiling water fell on her thigh whilst she was making a cup of tea at the workplace prior to commencing duties. Neilson CCJ accepted that making a cup of tea prior to commencing work was not uncommon and considered that making use of the employer’s premises for an activity that was permitted or authorized is an activity, which is incidental to the employment.
Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344, also involved a claim by a worker who sustained injury in the car park of his employer’s premises. In that case the worker was attending the premises on a rostered day off to make a complaint concerning a co-worker and to provide medical certificates. It was held that the activity engaged in by the worker was incidental or ancillary to the employment activities.
There was no detailed evidence given as to the route to be taken by the Worker between the car park and the place where he was ultimately to commence his duties. However, counsel for the Appellant submitted that there was no reason for Mr Hogno to be in the car park for any purpose other than to commence his work duties (T.9). The Respondent does not assert otherwise.
Consistent with these authorities, I find that the activity being undertaken by Mr Hogno at the time of his injury, that is, getting out of his car in the staff car park with the intention of proceeding from the car park to commence duties was an activity that was incidental to his employment.
It is therefore necessary to consider the strength of the causal link between the incidental work activity and the injury to determine if it is sufficiently substantial to satisfy the test in section 9A. Mr Hogno’s counsel made no submissions on this issue.
What constitutes a “substantial contributing factor” is a question of fact to be determined on the basis of the evidence in the particular case: Dayton v Coles Supermarkets Pty Ltd (2000) 19 NSWCCR 526.
Mason P observed in Mercer v ANZ Banking Group [2000] NSWCA 138 at [17] that there may be more than one substantial contributing factor to an injury “the word ‘substantial’ qualifies ‘contributing factor’ thereby indicating that it is the strength of the causal linkage that is in question”. Mason P went on to note at [27], referring to Bishop CCJ’s judgment:
“At par 29 of his judgment he held that the meaning to be adopted was that ‘substantial’ meant ‘more than minimal, large or great’. In my view this was the correct approach remembering that word is used in the relative sense, recognizing that other relative factors may be present. Section 9A does not require that the employment must be ‘the’ substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition (cf University of Tasmania v Kane (1994) TAS R 159).”
Section 9A(2) provides a series of examples of matters to be taken into account for the purpose of determining whether a worker’s employment was a substantial contributing factor to the injury. To discharge the obligation of satisfying himself that Mr Hogno’s employment substantially contributed to his injury, the Arbitrator should have considered the examples identified in section 9A(2). He did not do so. I therefore make the following findings in relation to the examples identified in section 9A(2):
(a) The time and place of injury:
The injury occurred at the employer’s premises as the Appellant was exiting his vehicle after having arrived at work at approximately 7.45am. Counsel for the Appellant submits, and I find, that Mr Hogno would not have been in his Employer’s car park for any purpose other than to commence his work duties.
(b) The nature of the work performed and the particular tasks of that work:
Mr Hogno was employed as a forklift driver. It appears that he carried out quite heavy work, however, it is not submitted that the injury sustained by him arose from the general nature and conditions of his employment, nor that he suffered an aggravation of a pre-existing disease condition. The task being undertaken at the time of the injury was getting out of his car, in the staff car park, with the intention of proceeding to commence duties for the day. I am satisfied that that activity was incidental to his employment.
(c) The duration of employment:
In the circumstances of this case the duration of employment is not of any particular significance.
(d) The probability that the injury or 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:
Although it is possible, given Mr Hogno’s weight and the presence of degenerative changes in his knee, that the injury or a similar injury may have happened at about the same time or at the same stage in his life even if he had not been employed by the Respondent, no expert evidence was called by either party on the issue.
(e) The worker’s state of health before the injury and the existence of any hereditary risks:
Dr Millons noted that Mr Hogno had clinical and radiological evidence of some degenerative processes in the right knee. He noted Mr Hogno’s “huge size” at 160kgs would have played a part in the degenerative process.
(f) The worker’s lifestyle and his or her activities outside the workplace:
The evidence is neutral on this issue.
The Arbitrator found (at Reasons [21] and [33]) that the injury suffered by Mr Hogno was a tear of the medial meniscus which may well have come about as a result of him taking the weight on the right knee and twisting it as he got out of his car in the car park. I agree with the Arbitrator’s conclusion as to the nature of the injury, and the circumstances in which it was sustained by Mr Hogno on 22 May 2006.
The factors in favour of a finding for Mr Hogno on the section 9A issue are:
(1) Mr Hogno suffered an injury (a tear of the right medial meniscus) in the act of turning to get out of his car in the staff car park, an act incidental to his employment.
(2) The Employer called no evidence to establish that the injury would have happened anyway at about the same time, or at about the same stage of the Workers life, if he had not been at work. Neither Dr Millons nor Dr Price addressed this issue.
(3) The Employer relied, in its section 74 notice, on a number of reports from Dr Sage. None of Dr Sage’s reports were attached to the Employer’s Reply or tendered in evidence. No explanation has been offered by the Employer for the failure to rely on Dr Sage’s evidence to establish its defence. In the circumstances I draw the available inference that the reports of Dr Sage would not have assisted the Employer’s case. See Atlas v Bulli Spinners Pty Ltd (1993) 9 NSWCCR 378; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
(4) Dr Millons’ opinion that Mr Hogno’s employment appeared to be a substantial contributing factor, at least in temporal terms. Whilst Dr Millons’ opinion is a relevant piece of evidence, the resolution of the section 9A issue is not purely a medical question and must be decided on the overall evidence. See Awder Pty Limited t/as Peninsular Nursing Home v Kernick and another [2006] NSWWCCPD 222.
The factors that militate against a finding in favour of Mr Hogno are:
(1) the evidence of degenerative changes in the right knee prior to the incident at work on 22 May 2006;
(2) he was symptomatic in the right knee by November 2005, that is, six months before the incident, and
(3) his excessive weight at 160 kilograms.
Ultimately, the finding on the application of section 9A is a matter within the personal judgment of the trial judge or decision maker. It is a question of impression and degree (see Dayton). The Arbitrator was not satisfied that there was a “sufficient nexus” between Mr Hogno’s presence in the car park and his work to satisfy the substantial contributing factor test in section 9A. Although the considerations are finely balanced, I have come to a different conclusion.
After weighing all relevant factors, I find Mr Hogno sustained a frank injury in the incident on 22 May 2006, being a tear of the meniscus in the right knee. Mr Hogno was undertaking an activity that was incidental to his employment at the time he was injured. Dr Millons opined that employment was a substantial contributing factor to the injury. Although it is possible that the injury or a similar injury could have occurred at about the same time, there was no evidence to establish the probability of such an event. Mr Hogno’s claim for compensation was rejected, as stated in the section 74 notice, on the basis of expert medical opinion obtained from Dr Sage. That evidence was not placed before the Commission and no explanation for the absence of it was provided. For the reasons given in this decision, I am satisfied that Mr Hogno’s employment was a substantial contributing factor to his injury.
I make the following findings:
(1) Mr Hogno sustained an injury to his right knee in the form of a tear to the right medial meniscus on 22 May 2006.
(2) Mr Hogno was not on a daily or other periodic journey to which the provisions of section 10 would apply at the time of his injury.
(3) I am satisfied that the provisions of section 9A have been satisfied. Mr Hogno’s employment was a substantial contributing factor to the injury.
Relief and Costs
The Appellant submits that an award should be entered in favour of the Worker in respect of payment of section 60 expenses and the claim for whole person impairment be referred to the Registrar for referral to an Approved Medical Specialist.
The Appellant submits that the costs order made by the Arbitrator be confirmed and also sought costs on the appeal, at 90% of the maximum permitted under Table 4, Item 1 of Schedule 6 of the Workers Compensation Regulation 2006.
The Respondent submits that the cost order made by the Arbitrator in favour of the Worker be revoked and, no order as to costs be entered in both the substantive proceeding and the appeal proceedings.
Although the Arbitrator made an award for the Respondent Employer, he entered a costs order in favour of the Worker based on the following (Reasons at [35]):
“As to costs, given the importance of the points raised in relation to the journey claim, I think that [sic] were fair ones for the Applicant to raise and have ventilated. Being raised, they required some research beyond the norm. For those reasons I propose to award costs to the Applicant and to certify costs for both the Applicant and the Respondent as complex with an uplift of 10%.”
The Commission has a discretion to determine “by whom, to whom and to what extent costs are to be paid” (see section 341 of the 1998 Act). Identical language is used in section 112 of the 1998 Act, which deals with costs in ‘existing claims’. The same words are also used in section 98(1)(b) of the Civil Procedure Act 2005. In making a cost order against the Respondent Employer and in favour of the unsuccessful Worker, the Arbitrator appears not to have had regard to established authority on the issue of costs (see Donald Campbell & Co Ltd v Pollack [1927] AC 732; Trenerry v Trenerry [1962] 2 NSWLR 221 and Oshlack v. Richmond River Council [1998] HCA 11; (1998) 193 CLR 72).
As noted by Acting Deputy President Roche (as he then was) in Sydney Opera House Trust v Sykes [2006] NSWWCCPD 227 at [36]:
“Applying the above authority a successful employer should not be ordered to pay the costs of an unsuccessful worker unless the employer has:
(a) been guilty of some sort of misconduct; (b) by its lax conduct, effectively invited the litigation, or (c) unnecessarily or unreasonably protracted the proceedings.”
The Arbitrator was in error in ordering the successful Employer to pay the costs of the unsuccessful Worker, however, given the Arbitrator’s decision in favour of the Employer is now revoked on appeal, and an award entered in favour of Mr Hogno, it is appropriate that the Employer pay, Mr Hogno’s costs of both the arbitral proceedings and the appeal. Neither party submitted that the uplift applied by the Arbitrator was inappropriate and I confirm the order allowing a complexity uplift of 10% on the costs of the arbitral proceedings.
CONCLUSION
Having conducted a review on the merits (Chemler at [28]), I am of the view that the Arbitrator was correct to conclude that Mr Hogno was not on a journey, within the terms of section 10 of the 1987 Act at the time of his injury on 22 May 2006. However, for the reasons given in this decision, I am not satisfied the Arbitrator was correct to conclude that Mr Hogno’s employment was not a substantial contributing factor to the injuries sustained by him. It follows that the Arbitrator’s decision must be revoked.
DECISION
The Arbitrator’s determination dated 27 November 2008 is revoked and the following order made:
“(1) The Respondent pay the Applicant’s section 60 expenses upon production of accounts and receipts.
(2) The matter is referred to the Registrar for referral to an Approved Medical Specialist for the assessment of permanent impairment under section 66 of the Workers Compensation Act 1987 in respect of the injury to the right knee on 22 May 2006.
(3) The Respondent pay the Applicant’s costs as agreed or assessed. The matter is certified complex with an uplift of 10%.”
COSTS
The Respondent pay the Appellant’s costs of the appeal.
His Hon. Judge G Keating
President
27 March 2009
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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