IRT Electronics Pty Ltd v Pan
[2012] NSWWCCPD 39
•3 August 2012
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | IRT Electronics Pty Ltd v Pan [2012] NSWWCCPD 39 | ||||
| APPELLANT: | IRT Electronics Pty Ltd | ||||
| RESPONDENT: | Zi Jin Pan | ||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | A1-8173/11 | ||||
| ARBITRATOR: | Mr J Phillips | ||||
| DATE OF ARBITRATOR’S DECISION: | 18 April 2012 | ||||
| DATE OF APPEAL DECISION: | 3 August 2012 | ||||
| SUBJECT MATTER OF DECISION: | Section 10(1D) of the Workers Compensation Act 1987; employer’s defence; whether journey did not cause or contribute to the injury | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Sparke Helmore | |||
| Respondent: | Young and Muggleton | ||||
ORDERS MADE ON APPEAL: | 1. The determinations and orders made by the Arbitrator as found in the Certificate of Determination dated 18 April 2012 are confirmed. 2. The appellant is to pay the worker’s costs of the appeal. | ||||
BACKGROUND
Mr Zi Jin Pan received injury on 12 October 2010 whilst on a journey between his place of abode and place of employment. He was at that time employed as an electronics assembler by IRT Electronics Pty Ltd (the appellant).
Mr Pan resided at Campsie, a suburb of Sydney, and his place of employment was located in the suburb of Artarmon. The subject injury occurred early in the morning at Campsie railway station. It was Mr Pan’s intention to catch a train to work. Mr Pan fell forward between an approaching train and the railway platform suffering multiple injuries. He claimed workers compensation benefits in respect of his resultant incapacity for work and treatment expenses.
It seems that weekly compensation benefits were paid to Mr Pan until a date in April 2011. At that time a decision was taken by the appellant’s insurer to decline further liability. A written notice of that decision was given to Mr Pan pursuant to the provisions of s 74 of the Workplace Injury Management and Workers Compensation Act (the 1998 Act) in correspondence dated 14 April 2011. The notice placed reliance upon the provision of s 10(1D) of the Workers Compensation Act 1987 (the 1987 Act). Particulars of the defence stated that Mr Pan’s personal injury resulted from a medical or other condition, namely epilepsy, and that the journey did not cause or contribute to the injury.
The dispute concerning Mr Pan’s entitlement to compensation benefits was the subject of an Application to Resolve a Dispute (the Application) filed with the Commission in September 2011. That application came before Arbitrator Jeffrey Phillips SC on 2 February 2012 for conciliation and arbitration. The matter proceeded to arbitration and concluded on that day. The Arbitrator reserved his decision. A Certificate of Determination together with a Statement of Reasons (Reasons) was issued by the Arbitrator on 18 April 2012. The Arbitrator’s orders were as follows:
“The Commission determines:
1. The respondent will pay to the applicant weekly compensation from 12 October 2010 to 28 November 2010 at the current weekly wage rate agreed at $789.33 per week; from 29 November 2010 the current weekly wage rate was $811.30, which will be paid until the effluxion of the 26 weeks period from the date of 12 October 2010. Thereafter, the applicant will be paid the full statutory rate for a single worker with two dependent children until 30 August 2011, from which date the applicant will be paid pursuant to section 40 of the Workers Compensation Act 1987, the sum of $400 per week.
2. I make a general order for section 60 expenses upon the production of accounts or receipts. Further, the respondent will have credit for any payments already made for weekly benefits or for medical expenses in that period.
3. The respondent will pay the applicant’s costs as agreed or assessed. To those costs to both parties I provide an uplift for complexity in the order of 30 per cent. The complexity of this case required the parties to deal with a number of competing decisions of the Compensation Court and the Workers Compensation Commission and a very close examination of the medical evidence.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
ISSUES IN DISPUTE
The appellant has raised one ground of appeal in which it is asserted that the Arbitrator has erred in law in the manner of application of s 10(1D) of the 1987 Act.
ON THE PAPERS
Section 354(6) of 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 Nos 1 and 6, the documents that are before me, and the submissions 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of s 352(3) and s 352(4) of the 1998 Act have been met.
THE ARBITRAL PROCEEDINGS
The parties were represented by counsel before the Arbitrator and those proceedings were recorded. A transcript (T) has been produced and made available to the parties. No oral evidence was adduced before the Arbitrator. The documentary evidence tendered on behalf of the parties was described by the Arbitrator at [7] of his Reasons.
It was not in dispute that the subject injury had occurred whilst Mr Pan was on a journey within the meaning of s 10(3)(a) of the 1987 Act. The appellant did not dispute the occurrence of injury nor its incapacitating consequences. It was also accepted by the appellant, as recorded by the Arbitrator, that should Mr Pan be entitled to an award in his favour he had entitlement to weekly compensation as noted by the Arbitrator (at T57). Section 10(1D) was relied upon by way of defence.
Evidence
Mr Pan’s evidence
There is in evidence a written statement made by Mr Pan dated 29 August 2011. Mr Pan had been employed on a full-time basis by the appellant since 1994. In 2008 he had been diagnosed as suffering from epilepsy. Thereafter, from time to time, he had minor seizures. He experienced three seizures at work between 2008 and the date of his injury. He was not sure as to whether he suffered a seizure earlier in 2010.
Mr Pan stated that on 12 October 2010 whilst on his way to work he was waiting for a train at Campsie station. He saw the train approaching and got up from his seat and walked towards the edge of the platform as the train approached. The last thing he remembered was the train coming in as he was standing on the platform. He then passed out and stated that “I may have suffered an epileptic fit at that time but I am not sure”. The next thing he remembered was lying on the platform next to the train. He believed that he had fainted and fell against the train, falling down to the edge of the platform and was dragged along by the train causing injury. He was transported to hospital by ambulance. He described his injuries as involving injury to his pelvis, his legs, his chest and head. He also suffered a back injury. He was hospitalised for a period of two months. He stated that he has not been able to return to work by reason of ongoing symptoms.
The balance of the documentary evidence tendered by Mr Pan consists of medical and hospital records relating to his treatment. That voluminous material need not be summarised.
The appellant’s evidence
The only documentary evidence tendered on behalf of the appellant was a copy of correspondence dated 14 April 2011 from the appellant’s insurer to Mr Pan giving notice of the decision to decline liability. The reason for rejection of the claim is stated in that correspondence as being that the subject injury was suffered following a seizure. The insurer relied upon the provisions of s 10(1D) of the 1987 Act as a defence as noted at [3] above.
Submissions before the Arbitrator
Mr Pan’s submissions
The following is a summary of submissions put by counsel on behalf of Mr Pan:
(a) the onus was upon the appellant to establish the elements of s 10(1D) (McGraw v Commonwealth Bank of Australia (2002) 24 NSWCCR 372 (McGraw) per Armitage J);
(b) the appellant must satisfy the Commission that the personal injury resulted from a medical or other condition of Mr Pan and that the journey did not cause or contribute to the injuries;
(c) having regard to the evidence it is “unclear” whether Mr Pan had suffered an epileptic seizure causing him to fall striking the train as it passed. Whilst inferences may be drawn from the medical evidence, no concession was made by Mr Pan concerning such an occurrence, and it was put that the onus remained upon the appellant;
(d) the injuries received are “not some brain dysfunction or some neurological disorder brought on by epilepsy”. His incapacitating injuries are orthopaedic in nature, and “have nothing to do with his medical condition of epilepsy”;
(e) the medical condition of epilepsy “has not resulted in [Mr Pan] sustaining orthopaedic injuries”;
(f) on the facts the personal injury was caused by the train “not the epileptic condition”;
(g) the journey did contribute to the injury;
(h) the Commission is “not dealing here with any substantial contributing factor”. All that is required is “a contribution”;
(i) the approaching train was an “added danger that would contribute to [Mr Pan] suffering this particular injury in fainting and falling against the train;
(j) reference was made to the decision of Bishop J in Gavalas v Montbase Pty Ltd t/as Quayside Brasserie (2002) 24 NSWCCR 285 (Gavalas), the reasoning of which was the subject of criticism;
(k) reference was made to the decision of Hamilton Fraser and Co v Pandorf and Co (1887) 12 App Cas 518 in support of the proposition that the injury had been caused by the train, rather than by “any kind of medical condition that caused him to fall”;
(l) s 10(1D) “only requires some contribution from the journey”;
(m) reliance was placed upon the decision of Snell ADP in Trustees for the Roman Catholic Church for the Diocese of Maitland/Newcastle v Barrett [2010] NSWWCCPD 62 (Barrett) in support of an argument that the intention of Parliament in drafting s 10(1D) was to exclude coverage by the legislation in case of injuries which, as stated by Armitage J in McGraw, as cited by Snell ADP, “result purely and simply from medical conditions suffered by the worker and not from anything that occurred on the journey”, and
(n) the decision of Simeon Wines t/as Buronga Hill Winery v Bobos [2004] NSWCA 342 (Bobos) was relied upon in support of the argument that in the present case “the journey itself contributed to the injury from the fact that he was on this journey” as had been found by the trial Judge in Bobos, whose reasoning had not been the subject of any criticism or comment by the Court of Appeal on that point.
The appellant’s submissions
The appellant’s primary argument suggested that the Commission was required to consider “the causation of the injurious event”, and it was put that “the consequences are … irrelevant” (at T23). There was no evidence that work was in any way causally related to the epileptic seizure. It seemed to be accepted by counsel that the onus was upon the appellant to establish the occurrence of an epileptic seizure. Reference was made to the medical records relating to Mr Pan’s history of epilepsy and the history there recorded of events immediately before the injury. Following detailed analysis of that evidence it was put that the Arbitrator would “be satisfied on the balance of probabilities that (Mr Pan) suffered an epileptic [seizure]” and that the episode “resulted in the happening of [the subject injury]” (at T40).
Reliance was placed upon the decision in Gavalas in support of the argument that the “causal chain” between the seizure and the injury “isn’t interrupted” (at T41.16). It was put that there was “no increase in risk in a person having an epileptic (seizure) in [sic] the journey” (T41.20).
Counsel made reference to the decision in Barrett and accepted that the phrase in s 10(1D) “cause or contribute to” should be “read disjunctively, so that ‘cause’ and ‘contribute’ are alternatives” as stated by Armitage J in McGraw as cited by Snell ADP in Barrett (at [56]).
Counsel returned to the subject, as stated by him, of “injury” which, it was put, “is the event. The injury is the occurring of an event. That is the falling” (at T43). Emphasis was placed upon the statement by Armitage J in McGraw that “what must be proved is that the journey contributed causally, even if in a minor way, to the happening of the injury” (McGraw at [43]).
Reference was made to the facts in Roads & Traffic Authority of New South Wales v Cormick [2007] NSWWCCPD 220 (Cormick) where the worker, who suffered from a serious genetic medical condition which rendered his bones prone to fracture, received a fracture to his arm whilst on a work journey when he tried to open a sliding window of a taxi in which he was travelling to work. It was argued that the finding in Cormick that the journey contributed to the injury is consistent with the appellant’s argument that it “is the event” that is relevant when s 10(1D) is applied.
It was put that the present facts and those in the matter of Del-Ben v Ferrero Australasia Manufacturing Pty Ltd [2009] NSWWCC 324 (Del-Ben), a decision of Arbitrator Minus, were analogous and that Mr Pan’s claim should fail, as did the worker’s claim in Del-Ben.
Mr Pan’s submissions in reply
It was put by counsel that one does not, in a s 10(1D) case, need to look for a causal connection to the work. The focus is upon the journey. The authorities relied upon demonstrate that a journey may cause or contribute to the injury. One does not:
“look at the event, the section refers to a personal injury and it’s the personal injury that is the, the [sic] discrete thing that [the Commission has] to look at, not how it occurred. It’s personal injury not the mechanism or how it occurred, when [the Commission looks] at 10(1D) about journey being [sic] caused or contributing to the injury” (at T51).
The Arbitrator’s decision
The Arbitrator, following a summary of the evidence and a number of concessions made by the appellant, addressed the question as to “whether Mr Pan suffered an epileptic seizure on the Campsie railway station platform” on the day he was injured. Following a careful summary of the evidence and consideration of argument raised by the parties, the Arbitrator concluded that “[Mr Pan] did have an epileptic seizure at the Campsie railway station on 12 October 2010 on his way to work” (at [17] of Reasons).
The Arbitrator proceeded to consider whether the journey did not cause or contribute to the injury within the meaning of s 10(1D). It was noted that the authorities cited by the parties were to an extent, conflicting. The injuries as described in the Application did not, the Arbitrator found, “of themselves relate to what one would expect to be injuries suffered by epilepsy, particularly the orthopaedic and other major organ problems”.
The Arbitrator made reference to the second reading speeches delivered in both Houses of Parliament and drew attention to the statements then made that the subsection was intended to exclude recovery of compensation for personal injuries resulting from a medical condition not related to work such as “heart attacks or strokes”.
The Arbitrator expressed the view that the present facts were analogous to those facts as found in McGraw, Cormick and Barrett. In those cases “there was a connection to the journey or a contribution even of a minor degree which contributed to the injury”. In the circumstances the Arbitrator concluded that the appellant had “not made out the statutory defence found in s 10(1D)” (at [37] of Reasons). The orders as noted at [4] above were made in favour of Mr Pan.
SUBMISSIONS, DISCUSSION AND FINDINGS
The appellant’s defence to this claim is founded upon the provisions of s 10 of the 1987 Act which provides relevantly:
“10 Journey claims
(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
…
(1D) Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury.”
The Arbitrator’s finding that Mr Pan had suffered an epileptic seizure on 12 October 2010 is not challenged on this appeal. At the hearing before the Arbitrator the following matters were not in dispute:
(a) the subject injury was received whilst Mr Pan was on a journey within the meaning of s 10(1) of the 1987 Act;
(b) the onus of proof of matters raised by the provisions of s 10(1D) was upon the appellant;
(c) the word “or” in the phrase “did not cause or contribute”, as appears in s 10(1D), is to be read disjunctively, and
(d) should Mr Pan be entitled to weekly compensation, such entitlement was as noted by the Arbitrator at the hearing (at T57).
The error asserted by the appellant is said to be found in the reasoning of the Arbitrator when considering whether the journey caused or contributed to the injury where it was stated (at [37] of Reasons):
“This case is properly analogous to the other decisions as decided in McGraw, Cormick and Barrett. In those cases, there was a connection to the journey or a contribution even of a minor degree which contributed to the injury. In the case of Cormick, it was the opening of the window and in the case of Barrett, had the micro sleep been considered a medical condition, it was the fact of the orthopaedic injuries happening in a motor vehicle when the micro sleep occurred as being the relevant contributing factor of the journey, so as to negate the statutory defence. I find therefore that the respondent employer in this case has not made out the statutory defence found in s 10(1D)”.
The appellant’s submissions include a detailed examination of relevant authority and particular reliance is placed upon the decision of Bishop J in Gavalas in which his Honour’s conclusion, as noted in submissions, was summarised by Armitage J in McGraw as follows (at [42]):
“[that] the applicant simply suffered an epileptic fit on a journey and was injured, the fit being the sole cause of injury and on his Honour’s findings unconnected with the employment or the journey”.
The facts in Gavalas were that the worker had been injured in a motor vehicle accident whilst on a journey within the meaning of s 10. The accident occurred following an epileptic seizure experienced by him. The employer successfully argued that the worker’s seizure had no causal relationship with his work. His Honour noted that there was no dispute that the injury resulted from the worker’s medical condition of epilepsy.
On the facts as found by Bishop J a conclusion was reached (at [22]) that:
“Whether one is looking at causation or contribution there must be more than a temporal connection, be it an application of a common sense chain of causation or a normative decision. Such is not established on the present evidence.”
The matter of Gavalas may, in my view, be distinguished from the present matter given my acceptance, as stated below, that here there is evidence that establishes that there is in fact more than a “temporal connection” as addressed by Bishop J.
I accept the appellant’s argument that the reasoning in Molloy v Gosford City Council NSWCC 43709 of 1999 (unreported, 13 July 2000) as expressed by Hogg C should not be accepted as a correct approach to construction and application of the provisions of s 10(1D). In that matter the Commissioner found that the mere fact that the worker was on a journey within the meaning of the section was sufficient to establish the necessary “contribution” of the journey. I prefer the reasoning as expressed by Armitage J in McGraw as adopted by Snell ADP in Barrett where it was stated (between [50] and [52]):
“50. This limb of section 10(1D) was considered by Armitage J in McGraw. His Honour quoted the second reading speeches in respect of Act 214 of 1989 (which inserted the subsection into the 1987 Act), in both Houses of Parliament. That in the Legislative Council (set out at [38] of his Honour’s judgment) was in the following terms:
‘In summary, coverage will not be provided for journey injuries which are not caused, or contributed to, by the journey and are not otherwise work related. Only if there is a relevant connection with the journey should injuries on periodic journeys be claimable. Injuries occurring on journeys between home and work which result from a medical condition suffered by the worker will continue to be covered if they are either contributed to by the journey - for example, by the stress involved - or causally related to the employment’.
51. His Honour then at [39] expressed the following view of the construction of section 10(1D):
‘The clear legislative intention to my mind is to exclude from s 10(1) coverage for “injuries” so called, which result purely and simply from medical conditions suffered by the worker and not from anything that occurred on the journey.’
52. In the same case, Armitage J at [43] noted the word ‘contribute’ would seem to pose a lesser connection with a given event than the term ‘cause’. His Honour observed the contribution from the journey does not need to be substantial, so from a worker’s point of view it is sufficient if ‘the journey contributed causally, even if in a minor way, to the happening of the injury’.”
The appellant also places reliance upon the decision in New South Wales Police Force v Cox [2009] NSWWCCPD 20 (Cox) a decision of Roche DP in which the worker, in an argument put in the alternative, alleged injury whilst on a journey received when, as he was driving his police vehicle, he turned his head to reach the police radio at which time he coughed and experienced severe pain in his head and weakness in the left side of his body. The worker had then, and for some days previously, suffered from a viral infection.
Whilst a finding was made in Cox that the worker was not on a journey within s 10, it was stated by Roche DP that, should he be wrong in so concluding, he was satisfied that the injury suffered by Mr Cox resulted from “his viral infection and the cough on 13 June 2004 and that the journey did not cause or contribute to the injury” (at [117]).
The appellant’s argument as founded upon the decisions cited, including that of Cox, is that the subsection addresses the incident (the injurious event), not its consequences. This argument is a re-statement of matters put by counsel before the Arbitrator. It is clear, as noted at [34] above, the error suggested is that the Arbitrator has concluded, as was found in McGraw, Cormick and Barrett, that there “was a connection to the journey or a contribution even of a minor degree which contributed to the injury” (at [37] of Reasons).
The appellant’s use of the term “injurious event” is adopted, as stated in submissions, from the reasons expressed by Neilson J in Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 (Lyons). It is put that his Honour in Lyons determined that “injury refers to both the event and the pathology arising from it” (at [22]). That suggested distinction is relied upon to found the argument noted above that the subsection, as applied in those cases cited, “deals with the question of causation in respect of the injurious event, not the sequelae of the incident” (at [9.11] of Submissions).
The appellant’s argument must be rejected. The provisions of s 10 concern personal injury, a term found in the definition of “injury” in s 4 of the 1998 Act, received by a worker on a journey as defined. The defence found in s 10(1D) concerns personal injury resulting from the medical or other condition of the worker whilst upon such journey. Adopting the terms used by Neilson J, the “event” and the “pathology arising” from the event are, in my view, each addressed by s 10(1D). That is, contribution to either the event or pathology is governed by the subsection.
On the present facts the injurious event was the fall occasioned by loss of consciousness related to the seizure. The personal injury comprised the multiple orthopaedic and soft tissue injuries caused by the impact of the moving train. The presence of the train was an element or condition of the journey and constituted a potential hazard.
The word “contribute” as it appears in the subsection was addressed by Armitage J in McGraw where it was stated (at [43]):
“It seems to me that if the ‘or’ between ‘cause’ and ‘contribute’ in s 10(1D) is disjunctive, as Mr Newton submits and I accept it is, the word ‘contribute’ must be given some work to do, in that it must connote something different from ‘cause’, and I think it does. It think it connotes a connection of a less strict kind between events than that required by ‘cause’ in that the connection required is simply that to ‘contribute’ to an outcome, an event may be simply one of several which have a real or operative influence, even if a minor one, on the outcome in question.”
The evidence, in my view, leads inevitably to the conclusion that the journey did have a “real or operative influence”, hence contribution, to the injury received by Mr Pan and the defence is not made out. In the circumstances I conclude that the appellant has failed to establish error on the part of the Arbitrator as suggested in the ground of appeal.
In reaching this conclusion I have taken into account the emphasis placed by the appellant in submissions upon the decision of Bishop J in Gavalas and the critical analysis of the decision in Barrett (submissions at [9.12]). I have earlier (at [33] above) expressed my view that the matter of Gavalas may be distinguished from the present. The appellant’s submission that there is a need to address the question of causation in accordance with those matters stated by the Court of Appeal in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 suggests too high a standard given the presence in the subsection of the term “contribute” as discussed above . That submission must be rejected. The Arbitrator’s determination should be confirmed.
DECISION
The determinations and orders made by the Arbitrator as found in the Certificate of Determination dated 18 April 2012 are confirmed.
COSTS
The appellant is to pay Mr Pan’s costs of the appeal.
Kevin O'Grady
Deputy President
3 August 2012
I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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