La Macchia v MCS Holdings (Australia) Pty Ltd
[2024] NSWPIC 629
•11 November 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | La Macchia v MCS Holdings (Australia) Pty Ltd [2024] NSWPIC 629 |
| APPLICANT: | Nicoletta La Macchia |
| RESPONDENT: | MCS Holdings (Australia) Pty Ltd |
| MEMBER: | Adam Halstead |
| DATE OF DECISION: | 11 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation payments pursuant to section 37; journey claim; applicant injured in a motor vehicle accident while driving from home to place of work; requirement for applicant to use own motor vehicle as part of employment; microsleep claimed to have occurred immediately prior to accident; whether a real and substantial connection between employment and the accident; subsection 10(3A); Held – not a compensable journey; award for the respondent. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant was injured in a motor vehicle accident on 26 December 2020 during a journey that is not compensable for the purposes of the Workers Compensation Act 1987. 2. Award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Ms Nicoletta La Macchia, was employed by the respondent, MCS Holdings (Australia) Pty Ltd, as a disability support worker on a casual basis. In that role, the applicant provided support and assistance to clients with disabilities so they may continue living independently in their own homes.
Work was allocated to the applicant through an electronic rostering system. She travelled directly from her home to places of work as rostered, that is, the homes of disabled clients. The applicant used her own motor vehicle to travel to work and was also required to transport her clients, using her motor vehicle, from their homes to medical appointments and other lifestyle activities as needed.
The applicant was rostered to attend to a client’s home in Casino on 26 December 2020 to provide support services on an overnight basis. That work allocation involved the applicant starting at 4.00pm and staying at the client’s home overnight. She was to resume work the next morning at 6.00am to further assist the client and then finish at 10.00am on
27 December 2020.About 3.00pm on 26 December 2020, the applicant left home at Alstonville and drove her motor vehicle towards Casino, initially through Lismore, and then west along the Bruxner Highway. At a point approximately 6km to the east of Casino, sometime around 3.45pm, the applicant’s motor vehicle left the roadway, became airborne and then collided heavily with the ground when she sustained injuries to her lumbar spine. She submitted a claim for payment of weekly workers compensation in relation to those injuries.
The respondent disputed the applicant’s claim on the basis her injuries arose in circumstances where there was not a real and substantial connection between the motor vehicle accident and her employment. The applicant filed an Application to Resolve a Dispute (ARD) at the Personal Injury Commission (Commission) on 13 June 2024.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter was before the Commission for arbitration on 4 September 2024 in a virtual hearing room. Ms Compton of counsel, instructed by Mr Harrison solicitor, appeared for the applicant, who was also present. The respondent attended by way of an authorised officer and was represented by Mr Saleh of counsel, instructed by Mr Biscevic solicitor.
Submissions were made on the issues in dispute at the arbitration hearing and counsel for the parties also later provided written submissions on the law and relevant case authority.
I am satisfied the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I endeavoured to bring the parties to the dispute to an agreed outcome and am satisfied that the parties have had sufficient opportunity to explore settlement. They were unable to reach agreement on resolution of the dispute.
ISSUES FOR DETERMINATION
The Commission has been requested by the parties to resolve the following issues:
(a) whether the applicant’s injuries arose during a journey for the purposes of s 10 of the Workers Compensation Act 1987 (the Act), specifically whether there was a real and substantial connection between employment and the accident from which the injuries arose; and, if so;
(b) the extent of incapacity for work experienced by the applicant as a result of the injuries.
EVIDENCE
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply with attachments from the respondent (Reply);
(c) documents provided with the Application to Admit Late Documents submitted by the applicant on 27 August 2024 (AALD1);
(d) documents provided with the Application to Admit Late Documents submitted by the respondent on 27 August 2024 (AALD2), and
(e) a statement from the applicant dated 2 September 2024 tendered at the arbitration hearing by way of Application to Admit Late Documents made by the applicant (AALD3).
Various objections were made about the applications for late evidence. A determination on the admission into evidence of AALD1, AALD2 and AALD3 was made at the arbitration hearing. Reasons for that determination were given to the parties at the time.
There was no application to call oral evidence or cross-examine any witness at the hearing.
Motor vehicle accident
The applicant made a statement to an investigator on 9 February 2021 about the
26 December 2020 accident and provided her recollection of events (extracted in relevant, unedited, part):[1][1] ARD p 14.
“42. The accident occurred on the Bruxner Highway, about 6-7 km east of Casino. The time of the accident would have been around 3.45pm. The trip from my home at Alstonville to my client’s home in Casino, generally takes about one hour.
43. The last recollection I have, prior to the accident, is driving west on the Bruxner Highway. It is a main road, however, the majority of the highway is a single lane in either direction.
44. The last thing I remember is going around a right-hand bend followed by a slight left-hand bend in the road. I remember checking my rear-view mirror as there was a car that was close behind me. I would have been travelling at approximately 100 kph. The road is signed posted 100 kph.
45. I have momentarily drifted off and gone into a micro sleep. I felt a jolt and I woke up and I was midair. My vehicle had gradually drifted off to the left of the road and was about 20 metres before a driveway on the left side of the road.
46. My vehicle has gone down a slight embankment, hit a driveway (embankment) which has propelled my vehicle upwards and forward and into the air. It was like a scene out of Dukes of Hazards as the car was propelled into the air.
47. I was woken by hitting the embankment. I was actually in the air when I woke up. Things were flying about my car in the air.
48. I immediately put my foot on the brake and placed both hands on the steering wheel. My vehicle continued in the air, across the other side on the driveway, coming to land on a council strip of land approximately 5 – 10 metres from the road Bruxner Highway). I did not collide with anything apart from hitting the ground heavily.
49. The front of my vehicle came down on the land very heavily, causing significant damage. I remember thinking, I am about to die. It was a really hard impact which jolted my body, before coming to a stop.”
It is undisputed the applicant suffered injuries to her lumbar spine on 26 December 2020 when her motor vehicle collided with the ground. The injuries have been described as “crush fractures of the L2 and L3 vertebral bodies” and a “significant worsening of left-sided sciatica”.[2] The primary issue in dispute is whether those injuries arise from employment.
[2] Reply p 258; per the report of Dr Simon Kinny, orthopaedic surgeon, dated 29 April 2021.
Nature and requirements of employment
It is undisputed, and the evidence before the Commission confirms, that the applicant was at the relevant time a disability support worker employed by the respondent and she was required, as a condition of employment, to provide her own transport by way of a motor vehicle. Further, as part of her duties, the applicant was required to attend at the residences of clients to provide in-home care and support services. A per kilometre allowance was available to be paid to the applicant for motor vehicle usage associated with employment in certain circumstances. Those would include when transporting a client from their home to “community access services”, examples given by the applicant being medical or hairdressing appointments.[3] There may also be situations where the applicant could be paid for using her motor vehicle from home, such as collecting a client from an airport, but such instances would require prior approval from the respondent.[4]
[3] ARD pp 11-12, Reply p 59.
[4] Reply p 59.
The requirement for the applicant to provide and use a motor vehicle in the course of employment is clear from the evidence and uncontentious. As is the fact the applicant worked various shifts in the days prior to the accident. There is no doubt she was travelling in her motor vehicle from home to work when the accident occurred that resulted in injury. That journey was not one for which she was to be paid any allowance.
FINDINGS AND REASONS
Was there a real and substantial connection between employment and the accident from which the applicant’s injuries arose?
The effect of s 10 of the Act is that compensation can be paid in relation to an injury received during a journey from a worker’s home and their place of employment but only where there is a real and substantial connection between employment and an accident or incident that gives rise to such injury.
The “real and substantial connection” requirement is at s 10(3A) and was considered by Keating P in Bina v ISS Property Services Pty Limited (Bina)[5] who identified that merely travelling to work from home is insufficient and that there must be something of substance to connect the employment with the accident. The President found the requirement at s 10(3A) of the Act will:[6]
“… usually be satisfied, depending on the facts, when there is a real and substantial connection between some feature of what the worker is reasonably required, expected or authorised to do, by reason of his or her employment, and the accident or incident out of which the personal injury arose.”
[5] [2013] NSWWCCPD 72.
[6] Bina, [117].
In Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden[7] (Wickenden) Roche DP considered that, while not essential, a real and substantial connection may be established where employment caused the accident. It was acknowledged that an accident may have more than one cause and that employment need not be the only or main cause. Employment need not even be a cause; only a “connection, of substance, between the employment and the accident” is required.[8] This was later confirmed by the Deputy President in Field v Department of Education and Communities (Field),[9] in that s 10(3A) of the Act “may, but does not necessarily, require a causal connection between the employment and the accident” and “the word ‘connection’ … involves a wider concept than causation”.[10]
[7] [2014] NSWWCCPD 13.
[8] Wickenden, [43].
[9] [2014] NSWWCCPD 16.
[10] Field, [34].
This line of reasoning was applied by Keating P in State Super Financial Services Australia Limited v McCoy:[11]
“The test under s 10(3A) of a ‘real and substantial connection’ may, but does not necessarily, convey the notion of a causal connection. It requires an association or relationship between the employment and the accident or incident, which may be provided by establishing that the employment caused the accident or incident. However, employment does not have to be the only, or even the main cause.”
[11] [2018] NSWWCCPD 26 at [69].
To meet the requirements of s 10(3A) then, there must be some connection between the applicant’s employment and the motor vehicle accident on 26 December 2020 that does not necessarily need to be causative but must have sufficient substance as to be more than a tenuous link to her duties as a disability support worker.
Applicant’s submissions
The applicant contends the requirement of employment relating to providing a motor vehicle is central to her claim. That is, the respondent required the applicant to have a motor vehicle, drive that motor vehicle to the various places of work (the homes of disabled clients) and transport clients as may be necessary or otherwise approved. It was essential for the applicant to be driving herself on the day of the accident to the home of a client. If not for the requirements of employment, the applicant would not have been injured in the motor vehicle accident. The applicant also argues that she had been working many shifts for the respondent prior to the accident, which may have contributed to her fatigue at the time the accident occurred.
According to the applicant, those circumstances establish a sufficient connection to employment for the purposes of s 10(3A) of the Act.
Respondent’s submissions
The respondent emphasised that s 10(3A) is a limiting rather than beneficial provision of the Act, which is accepted as the correct interpretation. The respondent contends the accident did not occur in the course of employment and the applicant was merely travelling to work; it was not an approved journey for the purposes of payment of any allowance. Further, the evidence does not support the applicant’s claim to work-related fatigue contributing to the accident. The applicant’s microsleep was the proximate cause of the accident, which was not connected to work.
The respondent submits the circumstances of the accident have insufficient connection to employment to satisfy the requirements of s 10(3A) of the Act.
Consideration
There is a link between the applicant’s employment and the accident in that she would not have made the journey from her home to work that day. However, Bina makes clear that link of itself is insufficient to establish a real and substantial connection between her work as a disability support worker and the accident that occurred when her motor vehicle left the roadway on 26 December 2020.
It was submitted that the applicant’s workload may have caused fatigue that resulted in the microsleep which is said to have happened immediately prior to the accident. The applicant’s own evidence is that she “did not feel tired” having had “a good 12-hour rest” and that there “was no reason for [her] to feel tired despite having a big week at work”.[12] The applicant sought to recant that evidence to some extent in a later statement wherein she said “I did not indicate to the investigator that I slept well that night” and that she “had interrupted sleep and was tired but felt fine to drive”.[13]
[12] ARD p 18, [76] and [78]; applicant’s statement dated 9 February 2021.
[13] AALD1 p 3, [20]; applicant’s statement dated 10 May 2022.
The first statement is preferred because it was made shortly after the accident, 45 days later, and the events were presumably clearer in the applicant’s memory. Whereas the second statement was made one year, four months and 14 days later. It is reasonable to reckon that by then her recollection of events would have faded given a lengthy period had passed. The second statement was also made in the context of a disputed claim, whereas the dispute had not arisen at the time of the first statement, which is a factor that must be taken into account. That is, the first statement is more likely to have been a somewhat plain, unaffected recitation of events. Notwithstanding the revisionary nature of the aspect of the second statement related to rest, the applicant nonetheless recalled that she “felt fine to drive”. So even at that much later time, the applicant still apparently recalled considering herself able to drive her motor vehicle in a manner as to arrive at the Casino destination without incident.
The applicant’s evidence is that a microsleep was the cause of her motor vehicle leaving the roadway immediately prior to the accident. It is suggested that fatigue caused the microsleep. There is no specialist medical evidence in the proceedings to establish a link between the two, that is, fatigue and a microsleep (or even the nature of a microsleep). The balance of the relevant available evidence on that issue does not establish there was work-related fatigue or that fatigue caused the microsleep. It is therefore not accepted the applicant’s employment was a contributing cause of the accident based on any work-related fatigue, which has not been proven to have been present in any case.
The remaining matter to consider is whether the requirement for the applicant to have a motor vehicle available at her variable places of work for the potential transportation needs of clients created a sufficient connection to the accident. It is axiomatic that the accident would not have occurred but for the applicant driving to work, however more is required.
The applicant’s employment did require her to have a motor vehicle, but no relationship between her duties as a disability support worker and that vehicle colliding with the ground on the way to work has been established. There is a link that is consequential to attending her employment and for the provision of client transport, but it is tenuous. That link does not provide a substantial connection between her actual work functions and the accident. The motor vehicle may well be an essential aid to that role once the applicant commenced work and was required to transport a client, but the requirement to provide the motor vehicle is insufficient of itself to connect the applicant’s employment as a disability support worker with the accident. Something further would be necessary to make that connection.
Any general acceptance of the proposition that a worker who requires a motor vehicle to facilitate certain essential functions of their employment would operate to circumvent the intention of s 10(3A) of the Act. If such a notion were to be accepted, many trades, professions, and other vocations where a motor vehicle is essential to the performance of the work would automatically meet the “real and substantial connection” requirement of s 10(3A) thereby defeating its limiting effect. That is plainly not the intention of the provision. It is however in essence what is being requested in this case and is not accepted.
The evidence does not establish a connection of a real and substantial nature between the applicant’s employment and her motor vehicle accident on 26 December 2020. This means the journey she made on that date is not a journey to which s 10 of the Act applies and so workers compensation is not payable.
It is unnecessary for the other issues in dispute to be considered in the circumstances.
SUMMARY
The applicant claimed workers compensation in relation to a journey that occurred on
26 December 2020 when she was injured in a motor vehicle accident. That journey was not one that can be accepted for compensation purposes. This means the applicant is not eligible for workers compensation in relation to that accident.Accordingly, there is an award for the respondent in relation to the dispute.
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