ISS Facility Services Australia Pty Ltd v Antonios

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE

COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:ISS Facility Services Australia Pty Ltd v Antonios [2008] NSWWCCPD 52

APPELLANT:  ISS Facility Services Australia Pty Ltd

RESPONDENT:  Tony Antonios

INSURER:Allianz Australia Workers Compensation Ltd

FILE NUMBER:  WCC7950-07

DATE OF ARBITRATOR’S DECISION:          4 February 2008

DATE OF APPEAL DECISION:  20 May 2008

SUBJECT MATTER OF DECISION:                Journey claim; periodic journey; onus of proof; material increase in risk of injury.

PRESIDENTIAL MEMBER:  President Greg Keating, DCJ

HEARING:On the papers

REPRESENTATION:  Appellant:      Stephen Lee Legal

Respondent:   Slattery Thompson

ORDERS MADE ON APPEAL:  The decision of the Arbitrator dated 4 February 2008 is confirmed.

The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

1.On 29 February 2008 ISS Facility Services Australia Pty Ltd (‘the Appellant/Employer/ISS’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 4 February 2008.

2.The Respondent to the Appeal is Tony Antonios (‘the Respondent/Worker’).

3.Mr Antonios was employed by ISS as a cleaner working morning shifts at North Sydney Boys High School and afternoon shifts at Naremburn Public School.  He alleges he suffered injury to his left ankle and ribs in a car accident on 1 August 2007 when he was on a periodic journey between his home and place of employment. 

4.The Worker’s usual routine was to work a morning shift at Sydney Boys High School and an afternoon shift at Naremburn Public School.  He normally walked to the afternoon job from his home, which is also in Naremburn, unless it was raining in which case he drove to work. A journey that takes him approximately 20 minutes. On the day of the car accident, Mr Antonios worked his morning shift at North Sydney Boys High School, returned home and at approximately 10.30 am drove to the West Ryde Shopping Centre, to undertake shopping activities.  He left the shopping centre to drive directly to Naremburn Public School at approximately 2.30 pm to commence his shift at 3 pm.  On the drive from the shopping centre to the school Mr Antonios was involved in a car accident.

5.ISS through its workers compensation insurer, Allianz Australia Workers Compensation Limited denied liability on the basis that the Worker was not on a periodic journey within the meaning of section 10(1) of the Workers Compensation Act 1987 (‘the 1987 Act’) or alternatively if the injury was sustained on a periodic journey, then it was sustained during or after an interruption or deviation unconnected with the Worker’s employment (section 10(2)).

6.On 18 October 2007 the Worker filed an Application to Resolve a Dispute in the Commission claiming weekly compensation at the rate of $450.00 per week on the basis of total incapacity from 1 August 2007 to date and continuing.  The matter was listed for a conciliation and arbitration hearing on 15 January 2008.  The parties were unable to resolve the claim and the matter…