Marrickville RSL Club Ltd v Mukesh
[2006] NSWWCCPD 152
•19 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Marrickville RSL Club Ltd v Mukesh [2006] NSWWCCPD 152
APPELLANT: Marrickville RSL Club Ltd
RESPONDENT: Narayan (Philip) Mukesh
INSURER:Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER: WCC16953-04
DATE OF ARBITRATOR’S DECISION: 27 June 2005
HEARING:9 June 2006
DATE OF APPEAL DECISION: 19 July 2006
SUBJECT MATTER OF DECISION: Extension of time to file appeal; injury arising out of employment; section 9A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Anthony Candy
REPRESENTATION: Appellant: C. Robertson instructed by
Stephen Lee Legal, Solicitor
Respondent: J. Jobson instructed by
Bullivants Legal, Solicitors
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator as contained in paragraphs 1 and 2 of the Certificate of Determination dated 27 June 2005 is revoked and the following paragraphs are substituted:
1.The Respondent is to pay the Applicant weekly compensation at the rate of $485.20 per week from 8 May 2002 to 5 November 2002 pursuant to section 36 of the Workers Compensation Act 1987.
2.The Respondent is to pay the Applicant weekly compensation under section 37 of the Workers Compensation Act 1987 as follows:
(a) $305.70 per week from 6 November 2002 to 31 March 2003;
(b) $310.90 per week from 1 April 2003 to 30 September 2003;
(c) $317.20 per week from 1 October 2003 to 31 March 2004;
(d) $323.00 per week from 1 April 2004 to 30 September 2004;
(e) $328.90 per week from 1 October 2004 to 31 March 2005; and
(f) $334.10 per week from 1 April 2005 to 23 July 2005.
2. The matter is remitted to the Arbitrator concerned to deal with outstanding issues.
3. The appellant employer is to pay the costs of the respondent worker.
BACKGROUND TO THE APPEAL
Narayan (Philip) Mukesh (‘the worker’) was employed by Marrickville RSL Club Ltd (‘the employer’) as a bartender. He suffered a serious injury to his left shoulder at work on 8 May 2002 when he fell against a refrigerator. The employer reported the injury to its workers compensation insurer, Employers Mutual Indemnity (Workers Compensation) Limited (‘the insurer’), on 21 May 2002 and described the injury as follows: “[i]t appears he had some sort of fit and then collapsed behind the bar area”.
The worker was admitted to Royal Prince Alfred Hospital after the injury where he remained until 6 August 2002. Open reduction and internal fixation of the left humerus with bone grafting was carried out. Unfortunately, wound infection complicated his treatment and, I infer, lengthened his stay in hospital.
The hospital notes on admission refer to a syncopal episode at work as follows:
“Collapsed? Jerking movements after and bite tongue had similar observed last year.”
The worker’s former solicitor wrote to the employer on 22 April 2003 seeking information as to his employment in order to advise him as to his rights in respect of injuries suffered in the course of his employment. This was supplied by a letter of 30 April 2003.
The worker’s present solicitor wrote to the employer and insurer on 1 November 2003 making a claim for weekly payments and lump sums in respect of another injury suffered in February 2001 and enclosed a report of Dr Lawson, specialist physician, dated 2 October 2003. That report assessed the loss of use of the left arm at or above the elbow. The doctor, however, obtained a history that the injury occurred on 8 February 2001.
The insurer replied to this letter that liability had been declined on 9 November 2001.
On 31 March 2004 a claim for compensation was completed by the worker with respect to the injury of 8 May 2002. The employer organised medical appointments with an orthopaedic surgeon, Dr Rimmer, and a general surgeon, Dr Truskett, both on 9 July 2004.
The insurer declined liability in respect of the injury of 8 May 2002 on the basis that employment was not a substantial contributing factor.
An Application to Resolve a Dispute was then lodged with the Workers Compensation Commission (‘the Commission’) on 11 October 2004 and there was a hearing before a Commission Arbitrator on 12 April and 6 May 2005.
The Arbitrator on 27 June 2005 determined that the employer was liable to pay weekly compensation and section 60 expenses. Other orders were made which are set out in paragraph 12 hereunder.
It is from this determination that the employer now seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 27 June 2005 records the Arbitrator’s orders as follows:
“1)Respondent is to pay the Applicant weekly compensation at the rate of $547.53 from 8 May 2002 to 8 November 2002 under s36 of the Workers Compensation Act 1987.
2)Respondent is to pay the Applicant weekly compensation at the rate of $436.68 from 9 May 2002 to 23 July 2005 under s37 of the Workers Compensation Act 1987.
3)The Respondent is to pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.
4)Respondent is to pay the Applicant’s costs as agreed or assessed.
5)Applicant is referred for medical examination by an Approved Medical Specialist to determine extent of permanent impairment and to provide advice in the nature of a General Medical Dispute.
6)The parties are to advise the Registrar within 14 days as to their agreement on the selection of an Approved Medical Specialist. In the absence of such agreement the Registrar is to choose an Orthopaedic Surgeon specialising in shoulder injuries.
7)The Applicant’s further entitlement to any award from 24 July 2005 under the Workers Compensation Act 1987, (including s40), will be reviewed at the teleconference when the report of the Approved Medical Specialist is received.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
·Whether time should be extended to file the Application for Leave to Appeal.
·Whether the injury of 8 May 2002 arose out of the worker’s employment.
·Whether the worker’s employment was a substantial contributing factor to the injury of 8 May 2002.
It is apparent from the determination of weekly payments made by the Arbitrator that these are erroneously stated. On appeal, the parties agree that this should be corrected whatever the outcome of the appeal and there was not ever any dispute as to this.
HEARING
Because of the issues, I was of the view that a hearing was warranted despite the fact that neither party had sought a hearing. This hearing was held on 9 June 2006 when the parties were represented by counsel.
EXTENSION OF TIME TO LODGE APPLICATION FOR LEAVE TO APPEAL
There were two Certificates of Determination in this matter: one dated 23 June 2005, and the other dated 27 June 2005. The Application for Leave to Appeal was initially lodged on 25 July 2005 and rejected by the Commission on 27 July 2005 for the reasons that there were no submissions on threshold issues and because of stated non-compliance with rule 77(3)(b) of the Workers Compensation Commission Rules 2003. That rule provides:
“(3)An application referred to in sub-rule (1) must include, or have attached, full details of:
...
(b)For the purposes of section 352(2) of the 1998 Act, the amount of compensation alleged to be at issue on the appeal...”.
I have looked at the Application to Appeal as originally lodged. It is clear from this that all of the compensation awarded is at issue on the appeal and on any view the quantum of weekly compensation exceeds $5,000.00. The first 26 weeks of compensation alone amount to $14,000.00 odd. Arguably, there was substantial compliance with rule 77(3)(b). Nonetheless, at the hearing on 9 June 2006 I extended time for lodging the Application to Appeal to 28 July 2006 (which is the date that the Application for Leave to Appeal was filed again) and indicated that I would give reasons later.
I extended time to lodge the Application to Appeal because the period involved was short, a matter of days, and the application to extend time was not strenuously opposed by the worker’s counsel. While compliance with the Commission’s rules is to be enforced, this should not be done at the expense of the requirement to do ‘justice between the parties’ (Gallo v Dawson (1990) 93 ALR 479).
LEAVE
I have already indicated that the appeal was lodged within the extended time which I ordered. The amount at issue on appeal exceeds $5,000.00 and all of it is at issue. Section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) is thus satisfied. Accordingly, I grant leave to appeal.
EVIDENCE AND SUBMISSIONS
The Worker’s Evidence:
The worker relied, among other things, on the employer’s report of injury of 21 May 2002 to which I have earlier referred. The Discharge Summary of the Royal Prince Alfred Hospital confirms that there was a fractured humerus. The Summary also refers to “alcoholic liver disease” as a pre-existing diagnosis.
Dr Lawson, as I said, obtained a history of the injury on 8 February 2001 when the worker tripped on a carpet and struck the bar with his left shoulder. This separate injury was not relevant to the May 2002 claim and it is remarkable that no documents were apparently made available to Dr Lawson to assist him in obtaining a correct history.) Dr Lawson assessed loss of use of the left dominant arm at or above the elbow. That assessment is not of any significance in this appeal. Dr Lawson also expresses a view as to fitness for work. Similarly, that matter need not concern me on this appeal.
The only claim form submitted by the worker in respect of the injury of 8 May 2002 is that of 31 March 2004.
The worker has been seeing his local medical officer, Dr Patu, since his discharge from hospital. That doctor has given a number of medical certificates dealing with unfitness from 8 May 2002 to 10 November 2004.
There is a statement from the worker dated 22 September 2004. In that statement the worker says that he had one fit on or about 31 July 2001. He is vague about the circumstances of it and says he had no problems after it. He had never been diagnosed with epilepsy and was not under any treatment for it. He had come to Australia after 1980 and had worked for the employer since 1995. His work was picking up glasses and serving drinks. He details a number of what he describes as “slips, trips and falls” as follows:
1996 – ribs
2000 – right shoulder and left ribcage
2001 – face and chest
March 2002 – thumb in train door
May 2002 – left shoulder.
The worker says he had not injured his left shoulder before 8 May 2002.
On the day in question he says he was behind the bar with another employee, Clarence (Pilcher). He says he thinks he tripped over and hit the taps of the bar. The carpet was not even and he supposes he tripped. He could not remember anything after falling to the floor. He sets out his complaints and treatment. He comments on what Clarence had said, namely that he’d had a seizure. He comments, “I would not have a clue about whether I had a seizure. As I said, I think I probably tripped”. He says he had not drunk any alcohol that day.
The Employer’s Evidence:
A factual investigation from Milne & Associates was attached to the Reply. The factual investigation noted that the worker had been employed as a casual barman on 28 March 1995 and became a permanent employee on 20 December 1995.
It also noted that there was a fall at work on 13 March 2001 when the worker injured his face and left chest. He had had a seizure of some sort on 31 July 2001.
Dr Crane, a surgeon, saw the worker at the request of the insurer on 22 January 2004. He took a history of the injuries on 13 February 2001 and 8 February 2002 (sic). The doctor was asked to confine his examination and report to the earlier injury. I am unsure of the relevance of this report.
A statement was taken by the investigator from the worker on 17 June 2004 with the permission of his solicitor. This statement is almost identical with that relied on in the worker’s case. He says in relation to the injury: “[t]he carpet was not even and I tripped over”.
A statement was taken from Mr Clarence Ross Pilcher. He describes the injury as follows:
“Phillip (sic) and I were standing just near the edge of the fridge, talking ... We would have been a maximum of 1 metre away from each other ... Suddenly his body went all funny and he crashed against the fridge ... It’s hard to describe it but his body jerked violently before crashing into the fridge ... His whole left shoulder and arm came in contact with the edge of the fridge door. The fridge door was on his left probably about a foot away from where he was standing ... He was bleeding from the mouth ... I can’t recall if he was conscious or not.”
Mr Brian Vivian Corrick, former Operations Manager of the employer, said in his statement that he recalled giving the worker written warnings about the consumption of alcohol on Club premises.
Dr Rimmer, orthopaedic surgeon, saw the worker at the request of the insurer on 9 July 2004. Dr Rimmer thought that the worker would never be fit for his pre-injury duties but was fit for suitable duties.
Dr Truskett, surgeon, reported on 12 July 2004. He agreed with Dr Rimmer’s view as to fitness and assesses impairment of the left upper limb.
What appear to be the complete notes of the Royal Prince Alfred Hospital in relation to the worker from 8 May to 6 August 2002 are attached to the Reply. There are a number of references in those notes to “fits, epilepsy and alcohol related problems”. On the day of admission there is an entry: “epilepsy three episodes investigated otherwise well ... witnessed fit at work”. On 9 May 2002 “History of happening previously but not able to elicit a coherent history”; “admitted with seizure and fracture dislocation of humerus – three seizures previously”; “ETOH abuse”; 13 May 2002 “cirrhosis (liver) probably secondary to alcohol – severe hepatic failure. Recently epilepsy”; 21 July 2002 “Alcohol abuse/dependence investigated epilepsy liver cirrhosis – alcohol related with decompensation features seizure 8 May”.
These are only a sample of the entries in the notes in relation to these matters and I have to the best of my ability translated the various medical abbreviations used in the notes.
At a later stage the employer sought to introduce further evidence which was duly admitted namely:
·There was an ambulance record of 8 May 2002 which had under the heading “Chief Complaint” – “post-ictal/dislocated left shoulder”. The ambulance officer noted that there was a laceration to the bottom lip.
·There was also an ambulance record in respect of an attendance on 13 February 2001 and the chief complaint is recorded was “? post ictal”.
·There was an attendance summary of the Canterbury District Hospital on 31 July 2001 and the note in part is “[s]tates had seizure on way home from work ... centralised shaking, bitten tongue, incontinent of urine”. Reference is made to a previous head CT scan being done in February 2001 and there is a note of heavy alcohol consumption.
·There was also a letter from a registrar at Canterbury Hospital to Dr Patu describing the attendance of the worker at the Emergency Department on 12 October 2004. The presenting problem was said to be “Patient brought in by ambulance from home with? blackout/fit – witnessed by son found patient stiff and shaking – 8-10 secs. Patient complaining of frontal headache and stiff neck for the last few days – history of alcohol abuse, hepatitis” . The diagnosis was “Bronchitis, acute with asthma”.
ORAL EVIDENCE
The evidence given by the worker during examination in-chief does not greatly add to what he said in his statement. In cross-examination he agreed that prior to May 2002 he used to drink about 35 schooners of beer a week as well as whisky. He had been off work with the thumb injury from 21 March 2002 and only resumed on the day that he injured his left shoulder. In relation to the circumstances of the injury, he says that he remembered that he tripped over in the bar and fell over the fridge. The worker was cross-examined as to giving a history to doctors, nurses and others at Royal Prince Alfred Hospital that he had suffered a seizure on 8 May 2002. He replied that he could not remember. It was suggested to him that he had invented the story about tripping over which he denied. He was cross-examined about his delay in lodging a claim form. He was also cross-examined about the fall in February 2001 and denied that he fell over. It appears that he received workers compensation in respect of the injury, of February 2001. He denied having previous seizures. He was also cross-examined as to his attendance at Canterbury Hospital in October 2004. He stated in connection with this that he had a virus at the time.
The transcript ends at page 40 and is obviously incomplete. I raised this matter with counsel at the hearing and neither indicated that it would be an impediment to the appeal proceeding.
ARBITRATOR’S REASONS FOR DECISION
In the reasons given the Arbitrator helpfully identified the issues as follows:
·Did the Applicant receive an injury arising out of or in the course of employment? (the 1987 Act section 4)
·Was the Applicant’s employment a substantial contributing factor to his injury? (the 1987 Act section 9A).
The other matters identified by the Arbitrator as being in dispute relate to incapacity and compensation. The Arbitrator stated that the worker had made a claim for weekly benefits, medical expenses and non-economic loss compensation on 1 November 2003. This is strictly not correct since the claim related to an earlier injury. However, nothing appears to turn on this. The Arbitrator noted that Dr Patu was of opinion that the worker’s employment was a substantial contributing factor to his injury. The Arbitrator commented that it was not until early 2004 that the worker says he saw the original claim forms (sic) which state he had some kind of fit and nothing else. (It does not appear clear to me that a claim form was ever submitted by the worker until 2004. The claim form referred to is undoubtedly that completed by the employer.) The Arbitrator professed to accept the evidence of Mr Pilcher for a stated reason which appears obscure. The Arbitrator said that he was satisfied on the balance of probabilities that it was more likely than not that the Applicant suffered the injury in the manner which is described by Mr Pilcher in his evidence. The Arbitrator considered on the evidence of a Mr Hu, a fellow worker, that any period of unconsciousness was relatively short, which the Arbitrator did not think was consistent with an epileptic fit. He said it was clear that the Applicant had a prior history of suffering “black-outs” however there is no evidence attributing those black-outs to epilepsy. The Arbitrator noted the worker’s admission as to alcohol consumption.
The Arbitrator considered whether the worker had had an epileptic seizure and concluded that the medical evidence did not allow him to make a positive finding against the worker in relation to this. The Arbitrator noted that there was no substantiating evidence of epilepsy.
The Arbitrator next dealt with the question of section 9A of the 1987 Act. He also considered whether the injury arose out of or in the course of employment and referred to the High Court case of Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504 and what was said by Starke J in that case at page 518, namely:
“An injury which arises directly out of circumstance encountered, because to encounter them falls within the scope of employment, is an injury arising out of the employment. If the worker is injured by contact physically with some part of the place where he works, then, apart from questions of his own misconduct he at once associates the injury with his employment.”
The Arbitrator noted that there was no suggestion of misconduct by the worker on this occasion and that he was at work doing his normal duties and fell behind the bar area of the Club hitting his shoulder on the bar fridge. Accordingly, he held that the injury arose out of the worker’s employment with the employer. The Arbitrator then turned to section 9A which he set out in its entirety. He referred to the decision of Bishop J in Mercer v ANZ Banking Group Ltd (1998-1999) 17 NSWCCR 271 where his Honour quotes from the judgment of Windeyer J in Federal Broom Co. Pty Ltd v Semlitch (1964) 110 CLR at 641 (‘Semlitch’). I will not set that passage out here, however, it is concerned with what the words ‘the employment’ means, namely, not the fact of being employed but what the worker does in his employment. The Arbitrator noted that the worker was going about his usual duties and also noted Mr Pilcher’s evidence that it was not a severe impact with the floor when the worker fell. The Arbitrator concluded that if the bar fridge had not been there then, any injury which he may have suffered would probably have been much less severe. He held that the worker’s employment was a substantial contributing factor to his shoulder injury. The balance of the Arbitrator’s reasons deals with incapacity and it is not necessary to consider them here.
EMPLOYER’S SUBMISSIONS ON APPEAL
The employer identifies two relevant grounds of appeal, apart from the issue of the amount of weekly payments, namely:
“1.That the Arbitrator erred in law in determining that the Respondent Worker’s injury ‘arose out of’ his employment with the Appellant – section 4.
2.That the Arbitrator erred in law in determining that the Respondent Worker’s employment was a ‘substantial contributing factor’ to the injury – section 9A.”
The employer refers to four cases in support of its submissions and I emphasise that the employer has limited the appeal to questions of law. It is said that the Arbitrator fell into legal error when he stated at paragraph 42 of his reasons:
“I am satisfied given the fact that the Applicant was at work doing his normal duties that he fell behind the bar area of the Club hitting his shoulder on the bar fridge that the injury arose out of his employment with the Respondent.”
In this context it is said that section 4 of the 1987 Act requires an unbroken causal connection with the employment and Tarry v Warringah Shire Council (1974) 48 WCR (NSW) (‘Tarry’) is cited. For section 9A and onus there are two cases cited, namely Stanton-Cook v TAFE Commission (NSW) (1999) 17 NSWCCR 632 (‘Stanton-Cook’) and Castree v Jimari Pty Ltd [2004] NSWWCCPD 69 (‘Castree’). Reference is made to the judgment of Windeyer J in Semlitch. The Arbitrator is said to be in error in stating, in paragraph 43, that the event or occurrence was the fact of the worker’s shoulder hitting the bar fridge. It is said that the event or occurrence is the collapse described by Mr Pilcher which caused the worker to collide with the fridge. The proper question is said to be whether the employment was a substantial contributing factor to the collapse. It is further said there was no event or occurrence or characteristic or condition of employment that contributed to the collapse and the worker had not discharged the onus in that regard. It is said that the worker’s case was premised on a trip and fall which was not accepted by the Arbitrator.
These submissions were expanded on by counsel at the hearing.
WORKER’S SUBMISSIONS ON APPEAL
The worker’s submissions note that the employer confined its appeal to errors of law and has not sought to appeal in respect of errors as to finding of facts or errors on weight given to evidence. At the hearing counsel for the employer indicated that the appeal was so confined and it was not sought to expand the basis of the appeal in any way. The point is made on behalf of the worker that if the Arbitrator erred in finding that injury arose out of the worker’s employment, it was still open for the Arbitrator to consider whether the injury was an injury received in the ‘course of employment’.
DISCUSSION AND FINDINGS
There is much force in the submission on behalf of the worker that the injury was received in the course of his employment. I know of no authority which would require a finding otherwise. Apart from section 9A, this alone would be sufficient to entitle the worker to compensation. The matter was not, however, decided by the Arbitrator on this basis. It is reasonably clear on the authorities that what is required under section 9A is a greater causal connection than a finding that the injury arose out of employment (see Mercer v ANZ Banking Corporation Ltd (2000) 48 NSWLR 740 (‘Mercer’) and ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257). If it were otherwise, section 9A would be superfluous. In the latter case, Mason P [17], referring to the cases of Healey v Delta Electricity (2000) 20 NSWCCR 491 and Muscat v Woolworths Ltd (2000) 20 NSWCCR 16, said:
“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 is in these terms:
“9A.(1)No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2)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 that 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.
(3)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.”
Section 9A was inserted into the workers compensation legislation by Act No. 120 of 1996, and the section commenced on 12 January 1997. As Mason P said in Mercer in paragraphs 10 and 11:
“10.Section 9A was introduced to modify the effect of Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310.
11.In Zickar, the High Court held that a worker who collapsed at work after the rupture of a cerebral aneurism had suffered a ‘personal injury’ (within the definition of s4 of the Act) in the course of employment notwithstanding that the aneurism was a congenital weakness. It was not necessary to show the injury arose ‘out of’ employment.”
In relation to section 9A a number of propositions may be stated with some certainty. These are:
(a)Section 9A does not require that the employment be the substantial contributing factor, nor does it attempt to exclude pre-disposition or susceptibility to a particular condition – Mercer.
(b)‘Substantial’ in section 9A means more than minimal, large or great: other causative factors may be present – Mercer.
(c)The ultimate decision as to ‘substantial contributing factor’ is a finding of fact and is a matter of impression and degree – McMahon v Lagana [2004] NSWCA 164 (‘McMahon’).
As I have indicated, the employer relied on a number of cases with which I will now deal. In Tarry a worker died some days after an altercation at work. The widow failed in her claim before Gibson J who held that the death of the deceased worker did not result from an injury arising out of or in the course of employment. The Judge held that the deceased was acting outside the scope of his employment. The altercation had taken place as a result of a work dispute. On appeal, Hutley JA held that the injury from which the worker died arose out of his employment. Glass JA and Samuels JA agreed.
The employer also placed reliance on the decision of Neilson J in Stanton-Cook. His Honour found that the worker in that case had attended her place of employment for a private and non-work related purpose when she tripped over a metal bar in a car park suffering injury. His Honour referred to the High Court decision of Smith v Australian Woollen Mills Ltd (1934) 50 CLR 504 which was relied on by the Arbitrator in this case. Neilson J summarised the case as follows (at 637):
“In that case, the worker, who was employed by wool carders, in the course of his duties walked along the passageway between some wool carding machines. The passageway was protected by guardrails on either side of it. The worker suffered from diabetes and that condition caused him to faint. As the applicant fainted, he fell against the guardrails and, as a result of falling against the guardrails sustained injury. It was held in that case that the injury arose out of the employment.”
His Honour noted that the worker in Smith’s case was physically performing work he was required to do when he fell against part of his employer’s premises.
His Honour also cites at 638 what the majority in that case had said namely:
“We think that if an additional element or consideration is needed before it can be said that a workman’s injury arises out of his employment where the injury is occasioned by his falling, through circumstances personal to himself, against some physical object where he is at work, that additional element or consideration is to be found, not necessarily in the risk of injury inherent in the place, but also in the character of the thing, physical contact with which causes the injury. If the workman’s fall brings him into contact with something which, like plant or machinery, is peculiar to the worker occupation, and is not common both to industrial and private life, then the reason for his suffering includes the important circumstances that but for doing the particular piece of work which he was in fact performing, he would not have experienced that particular sort of injury.”
Reliance is placed by the employer on the decision of Justice Sheahan, the President of the Commission, in Castree. That case supports the proposition that the onus of proving substantial contributing factor is on the worker.
The employer also relies on the decision of Windeyer J in Semlitch and in particular to his Honour’s definition of ‘employment’ to which I have earlier referred.
The essence of the employer’s complaints concerning the decision of the Arbitrator is that the worker, as a result of a fit of some sort, came into contact violently with an immovable object which happened to be a fridge. This is said not to be peculiar to his work or occupation. I am unsure whether the employer’s submission is that the worker was not actually doing the work which he was employed to do at the time he was injured. If it is then I would reject it. Nonetheless it is conceded that he was in the course of his employment at that time.
I have already indicated that it is clear that the injury arose in the course of the worker’s employment. The employer argued that the Arbitrator erred in finding that it arose out of that employment. I assume that this argument is maintained because if, as it appears, the test for ‘arising out of” is less stringent than that for ‘substantial contributing factor’ then if the worker fails in relation to ‘arising out of’, then he must also fail in relation to section 9A. I note however what was said by Ashley J of the Supreme Court of Victoria in Popovski v Ericsson Australia Pty Ltd [1998] VSC 61 which was cited with apparent approval by Mason P in Mercer [33]. The passage is as follows:
“Third, the requirement that the injury ‘arise out of’ employment remains more stringent than the requirement that employment be ‘a significant contributing factor’ to injury. It is possible to envisage situations in which injury might not satisfy the former test yet would satisfy the latter test. It might be the case, to take an example, that a man struck directly by a bolt of lightning at his workplace would not, (consonant with the old authorities) suffer injury arising out of his employment; but that his employment – regardless that his duties did not require him to be at the critical place at the critical time – would be a significant contributing facto to his injury.”
I must confess that I find the discussion of causation in this context to be somewhat sterile. I am not persuaded that the Arbitrator erred as a matter of law in finding that the injury arose out of the worker’s employment.
I now turn to what I consider is the real heart of the matter, namely the application of section 9A. The onus of satisfying the requirements of section 9A is clearly upon the worker. The Arbitrator did not make a finding that the worker suffered an epileptic fit. There were many entries in the hospital notes which suggested that this was the case. However, it is difficult to say from those notes that a definite diagnosis of epilepsy was ever made. It appears to have been based on history and perpetuated in the hospital notes. It is beyond doubt that the worker had suffered what appeared to be at least two prior seizures. Nonetheless, the Arbitrator was not obliged to find that the worker had suffered an epileptic seizure on the day in question. The complaint is made that the worker’s case was put on the basis of a ‘slip and fall’. The Arbitrator found (at paragraph 42) that the worker fell behind the bar area hitting his shoulder on the bar fridge. This does not exclude the cause for the fall being a seizure of some sort. While such a seizure would not of itself be compensable because of section 9A, it may be otherwise where that seizure leads to a physical injury by contact with part of the premises where the worker is required to work. That is, it is possible, I think, to differentiate between the seizure and the injuries suffered as a result of a fall following that seizure. The employer may well argue that the seizure was the cause of the worker suffering injury. Consistent with authority, however, this does not exclude the fact that employment may still be a substantial contributing factor to the injury.
The Arbitrator at paragraph 43 set out section 9A in full and made the following finding:
“In this case the event or occurrence was the fact of his shoulder hitting the bar fridge. All the characteristics and the conditions of the work performed were present. It was a normal shift. He was going about his usual duties. As a bar attendant it would be essential for him to move backwards and forwards to and from behind the bar area. Based on the evidence of Mr Pilcher to the effect: ‘It was not a severe impact with the floor, not that I recall’. It may be concluded that if the bar fridge had not been there when he fell then any injury that he may have suffered would probably have been much less severe.
In relation to section 9A I find that the Applicant injured himself during a normal shift at work. The injury was caused by his shoulder hitting the bar fridge in the confined or narrow area behind the bar at the club. There is no evidence that he was doing anything other than his normal duties at the time. Consequently I find that his employment was a substantial contributing factor to his shoulder injury.”
For my part, I do not consider that the Arbitrator erred in making the finding of fact as to ‘substantial contributing factor’. I am reinforced in that view by what was said by the members of the Court of Appeal in McMahon. As I have earlier said, the employer’s appeal was limited to matters of law and in my view, clearly, no question of law arises.
It follows from the foregoing that the appeal fails and the decision of the Arbitrator should be confirmed, subject only to the rectification of the award for weekly payments of compensation with which I will deal next.
WEEKLY PAYMENTS OF COMPENSATION
I have set out in paragraph 12 the Arbitrator’s orders as to weekly payments of compensation. These are contained in the first two paragraphs of those orders. It is clear that the Arbitrator found the worker totally incapacitated up to 23 July 2005 and there is no contest from the employer that the worker is to be so compensated, apart from the matters the subject of this appeal. There are a number of mistakes with the award for weekly compensation:
(a)The figure of $547.53 which represents average weekly earnings was taken as the appropriate rate for the first 26 weeks of total incapacity pursuant to section 36. The correct figure is agreed to be $485.20 which is the current weekly wage rate.
(b)This period of 26 weeks is said to conclude on 8 November 2002. The correct date is 5 November 2002.
(c)The award under section 37, after the first 26 weeks, is said to commence from 9 May 2002. The correct date is 6 November 2002.
(d)The rate of compensation awarded under section 37 is calculated wrongly as 90% of the current weekly wage rate, disregarding the statutory cap imposed by section 37(1)(a)(i).
The parties agree that the Arbitrator has erred as indicated and I confirm that the Arbitrator has so erred. Consequently, paragraphs 1 and 2 of the Certificate of Determination dated 27 June 2005 should be revoked.
DECISION
The decision of the Arbitrator as contained in paragraphs 1 and 2 of the Certificate of Determination dated 27 June 2005 is revoked and the following paragraphs are substituted:
“1.The Respondent is to pay the Applicant weekly compensation at the rate of $485.20 per week from 8 May 2002 to 5 November 2002 pursuant to section 36.
2.The Respondent is to pay the Applicant weekly compensation under section 37 of the Workers Compensation Act 1987 as follows:
(a) $305.70 per week from 6 November 2002 to 31 March 2003;
(b) $310.90 per week from 1 April 2003 to 30 September 2003;
(c) $317.20 per week from 1 October 2003 to 31 March 2004;
(d) $323.00 per week from 1 April 2004 to 30 September 2004;
(e) $328.90 per week from 1 October 2004 to 31 March 2005; and
(f) $334.10 per week from 1 April 2005 to 23 July 2005.”
The matter is remitted to the Arbitrator to deal with outstanding issues.
COSTS
The employer has failed on the substantive part of the appeal and, as I indicated earlier, the correct quantum of weekly compensation was not ever in issue. Accordingly, in my view, the appropriate order is that the appellant employer should pay the costs of the respondent worker.
Anthony Candy
Acting Deputy President
19 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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