Kim Foley and Comcare
[2012] AATA 458
•20 July 2012
[2012] AATA 458
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0475
Re
Kim Foley
APPLICANT
And
Comcare
RESPONDENT
Decision
Tribunal Deputy President P E Hack SC
Date 20 July 2012 Place Brisbane (heard in Townsville) The decision under review is affirmed.
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Deputy President P E Hack SC
Catchwords
COMPENSATION – Injury – injury arising out of, or in the course of employment – no intention to return – not at direction or request of the Commonwealth to transport applicant to hospital – request not related to the performance of the employee’s ordinary duties – decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 6(1), 14
Cases
Peet v Workers Rehabilitation and Compensation Corporation (1996) 66 SASR 474
Repatriation Commission v Law (1980) 47 FLR 57
Telstra Corporation Limited v Bowden [2012] FCA 576REASONS FOR DECISION
Deputy President P E Hack SC
20 July 2012
Introduction
The applicant, Ms Kim Foley, is an employee of the Australian Taxation Office at its Townsville office. On the morning of 11 April 2011 Ms Foley arrived at work at approximately 7 am. Shortly after her arrival she experienced chest pains. An ambulance was called and when it arrived she was placed on a stretcher and conveyed by ambulance officers to the ambulance vehicle.
In circumstances which are difficult to comprehend, Ms Foley fell from the stretcher to the ground. As a consequence of that fall, Ms Foley's right elbow was badly fractured.
In April 2011 Ms Foley made a claim on the respondent, Comcare, for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). On 24 May 2011 Comcare determined that it was not liable to pay Ms Foley compensation in respect of her claim. That decision was affirmed on reconsideration on 13 July 2011.
Ms Foley now seeks a review of Comcare's decision.
The legislation
By virtue of section 14 of the SRC Act, Comcare is liable to pay compensation in accordance with that Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. There is no doubt that Ms Foley was an employee and that the result of the incident was at least incapacity for work. The issue that arises in the present proceedings is whether Ms Foley suffered an injury as that term is defined in the SRC Act.
The term is defined in section 5A of the SRC Act as meaning a disease or an injury (other than a disease) suffered by an employee that is a physical or mental injury arising out of, or in the course of, the employees employment. There are some exclusionary provisions but it is unnecessary to consider them in the present case. In the dichotomy of disease and injury in the SRC Act, Ms Foley's condition, if it is anything, is an injury properly so-called rather than a disease.
The expression "arising out of, or in the course of, the employees employment" is not defined in the SRC Act. However s 6(1) of the Act sets out certain circumstances where an injury is to be treated as having arisen out of, or in the course of, employment. Relevant to Ms Foley's situation, and relied upon by her, are the matters specified in paragraphs (c), (f) and (g) of that subsection. They are in these terms,
(1)Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
…
(c)while the employee was temporarily absent from the employee’s place of work undertaking an activity:
(i)associated with the employee’s employment; or
(ii)at the direction or request of the Commonwealth or a licensee; or
…
(f)while the employee was at a place for the purpose of:
(i)obtaining a medical certificate for the purposes of this Act; or
(ii)receiving medical treatment for an injury; or
(iii)undergoing a rehabilitation program provided under this Act; or
(iv)receiving a payment of compensation under this Act; or
(v)undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or
(vi) receiving money due to the employee under the terms of his or her employment, being money that, under the terms of that employment or any agreement or arrangement between the employee and the Commonwealth or a licensee, is available, or reasonably expected by the employee to be available, for collection at that place; or
(g)while the employee was travelling between the employee’s place of work and another place for the purpose of:
(i)obtaining a medical certificate for the purposes of this Act; or
(ii)receiving medical treatment for an injury; or
(iii)undergoing a rehabilitation program provided under this Act; or
(iv)undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or
…
Ms Foley contends in these proceedings that her condition was an injury that arose out of or in the course of her employment. Alternatively, she contends that it was sustained while she was temporarily absent from her place of employment undertaking an activity (seeking treatment for chest pain) at the direction or request of the Commonwealth (the s 6(1)(c) claim). Further, she says that the chest pain constituted an injury as defined in the SRC Act and that the elbow fracture was sustained whilst she was at a place (the ambulance) for the purpose of receiving medical treatment for that injury (the s 6(1)(f) claim) or was travelling between her place of work and another place for the purpose of receiving medical treatment for that injury (the s 6(1)(g) claim).
For its part Comcare denies that Ms Foley suffered an injury, as defined, on any of these bases.
Arising out of, or in the course of, employment
In Telstra Corporation Limited v Bowden[1] Murphy J, after reference to Repatriation Commission v Law[2], said,
What is required for an injury to arise out of employment is a causal connection which is less proximate than “caused by” or “results from”, but not a connection which is fanciful or tenuous.
Such a connection is, in my view, absent from the present case. Ms Foley’s employment provided the connection but it was a temporal one, not a causal one. Ms Foley was not involved in the performance of any part of her employment, express or implied, at the time of the incident. Whilst I could not, on the evidence, conclude that she has ceased her employment for the day (as the submissions for Comcare suggest) the evidence does support the conclusion that at the time of Ms Foley’s departure from the building there was no expectation on the part of her immediate supervisors that she would be returning that day. And there is no evidence that she communicated to her supervisors an intention to return that day.
[1] [2012] FCA 576 at [37].
[2] (1980) 47 FLR 57, 68.
And this is not a case where the employment brought Ms Foley to the locality where the incident occurred. She had left her place of employment and was in a public place which had no connection with her place of employment.
The present case bears some similarity to that of Peet v Workers Rehabilitation and Compensation Corporation[3], a decision relied upon by Comcare. In that case an employee had claimed compensation for chest pains. Whilst on leave, the employee was required by the compensation authority to attend a hospital for an examination. Whilst leaving the hospital the employee slipped and fell. In considering whether the injury had arisen “out of, or in the course of, employment” Doyle CJ, with whom Duggan J agreed, concluded[4] that the attendance at the hospital was “in no sense for the purpose of the worker’s work”; the link to employment, his Honour concluded, was “too tenuous”.
[3] (1996) 66 SASR 474.
[4] At [41].
I reach the same conclusion. I am not satisfied that the incident in which Ms Foley sustained her injury (using the term in the non-statutory sense) had a sufficient connection with her employment such that the resulting injury could be said to have arisen out of, or in the course of, that employment.
At the direction or request of the Commonwealth
Ms Foley relies upon the fact that the ambulance was called by her at the request of her supervisor, Ms Lynam. This, she contends, was in discharge of the Commonwealth’s “duty of care”. Even if that be accepted (and without undertaking any analysis of the content of the duty) I am not satisfied that Ms Foley’s absence from her place of employment was at the direction or request of her employer. On analysis, the argument fails because any request was for Ms Foley to call an ambulance; it was the ambulance officers who determined to transport Ms Foley to the hospital, not Ms Lynam or another officer of the Australian Taxation Office.
Moreover, as it seems to me, there must, in any event, be a sufficient connection with employment. Put another way, the direction or request must be related to the performance of the employee’s ordinary duties, actual or those that might be expected to be performed.
I am then not satisfied that s 6(1)(c) of the SRC Act deems the condition to be an injury as defined.
Receiving medical treatment for an injury
The arguments under ss 6(1)((f) and (g) of the SRC Act may be considered together because they each have a common element – “medical treatment for an injury”. There can be no doubt that the word “injury”, where it appears in these two paragraphs has the meaning given by the definition in s 5A of the SRC Act.
Nothing is known of the “chest pains” beyond the fact that they occurred shortly after Ms Foley commenced work for the day. There is no evidence that would enable me to infer that the chest pains evidenced an injury properly so called; the only inference open on the limited evidence is that the chest pains were symptoms of a condition that, at best, amounted to an ailment (as that term is used in the SRC Act). But were I to draw that inference, there is no evidence that would entitle me to conclude that any such ailment was contributed to, to a significant degree, by Ms Foley’s employment by the Commonwealth.
On that basis I am not satisfied that Ms Foley’s condition arose out of, or in the course of, her employment by operation of either of ss 6(1)(f) or (g) of the SRC Act.
Conclusion
It follows that I would affirm the decision under review.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC.
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Associate
Dated 20 July 2012
Date of hearing 15 June 2012 Applicant In person Counsel for the Respondent Mr M Black Solicitors for the Respondent Australian Government Solicitor
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