Mozsny and Comcare (Compensation) - [2018] AATA 1966

Mozsny and Comcare (Compensation) [2018] AATA 1966 (4 June 2018)
Division:GENERAL DIVISION
File Number(s): 2017/2336
Re:Fiona Mozsny
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:4 June 2018
Date of written reasons: 29 June 2018
Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the reviewable decision, being the decision of Comcare made 6 March 2017 denying liability to pay compensation to Ms Mozsny in respect of an injury to the left knee sustained 10 December 2016, is affirmed.
.............[sgd]...........................................................
J W Constance
Deputy President
Catchwords
COMPENSATION – injury arising out of or in the course of employment – injury to left knee – weekend social function – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473
EDITED TRANSCRIPT OF ORAL REASONS FOR DECISION GIVEN 4 JUNE 2018
Deputy President J W Constance
29 June 2018
INTRODUCTION

Ms Mozsny has applied to the Tribunal to review a decision of Comcare, which refused her application for compensation in respect of an injury which she suffered at a time when she was an employee of the Department of Human Services. Her claim was made in accordance with the Safety, Rehabilitation and Compensation Act1988 (Cth).
In colloquial terms, the condition which gives rise to the claim was suffered by Ms Mozsny at “an office Christmas party.” The incident occurred on Saturday, 10 December 2016, and it is not in dispute that Ms Mozsny suffered an injury to her left knee on that occasion.
The conclusion that I have come to is that Ms Mozsny’s knee condition was not one that can properly be described as “arising out of, or in the course of” her employment in the legal sense. The result is that the decision rejecting her claim will be affirmed. This means that Ms Mozsny is not entitled to compensation under the Act, subject of course to the appeal rights she has.
BACKGROUND
The event at which Ms Mozsny was injured was held at a winery nearby Ms Mozsny’s place of employment, and was an event organised by one of her work colleagues. It was attended by about 50 per cent of the local office at which Ms Mozsny worked, the total staff of that office being around 40.
The facts of this matter are not in dispute. I find Ms Mozsny to be a totally honest witness who gave her evidence to the best of her recollection.
The only other witness was Ms Tait, who was called on behalf of the Respondent. She was the service centre manager at the office in which Ms Mozsny worked at the time of the injury back in December 2016. I am satisfied that she is a totally honest witness who gave her evidence to the best of her recollection.
THE ISSUE
The issue in this matter is a narrow one. It is whether the knee condition suffered by Ms Mozsny…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mozsny and Comcare (Compensation)

Details

AGLC: Mozsny and Comcare (Compensation) [2018] AATA 1966
Case: [2018] AATA 1966
Decision Date: 4 June 2018

CaseChat Overview and Summary

This matter concerned an appeal by Ms Mozsny against a decision by Comcare to reject her claim for compensation for an injury to her left knee. The injury was sustained at a weekend social function held at a winery, organised by a work colleague, and attended by approximately half of the staff from Ms Mozsny's office. The facts of the matter were not in dispute, and the Deputy President found both Ms Mozsny and Ms Tait, the service centre manager, to be honest witnesses.

The central legal issue before the Tribunal was whether Ms Mozsny's knee condition constituted an "injury arising out of, or in the course of" her employment with the Department of Human Services, as defined by the Safety, Rehabilitation and Compensation Act 1988 (Cth). The Tribunal was bound to apply the provisions of the Act as interpreted by the courts, particularly the High Court of Australia, and was not at liberty to exercise discretion based on notions of fairness.

The Tribunal applied the principles established in *Hatzimanolis v ANI Corporation Limited*, which guides the assessment of whether an injury sustained during an interval or interlude within an overall period or episode of work occurs in the course of employment. The High Court indicated that such intervals are more readily considered part of the course of employment if the employer has expressly or impliedly induced or encouraged the employee to spend that interval at a particular place or in a particular way. In this case, the Tribunal found that the use of Departmental time and resources by a colleague in organising the event did not equate to encouragement or direction from the employer to attend. Consequently, the Tribunal concluded that Ms Mozsny's injury did not arise out of or in the course of her employment.

The Tribunal affirmed the reviewable decision of Comcare, which had denied liability to pay compensation to Ms Mozsny for her left knee injury sustained on 10 December 2016. Ms Mozsny is not entitled to compensation under the Act, subject to her appeal rights.

Orders

Orders of the court

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Background

Background to the litigation

The conclusion that I have come to is that Ms Mozsny’s knee condition was not one that can properly be described as “arising out of, or in the course of” her employment in the legal sense. The result is that the decision rejecting her claim will be affirmed. This means that Ms Mozsny is not entitled to compensation under the Act, subject of course to the appeal rights she has. BACKGROUND The event at which Ms Mozsny was injured was held at a winery nearby Ms Mozsny’s place of employment, and was an event organised by one of her work colleagues. It was attended by about 50 per cent of the local office at which Ms Mozsny worked, the total staff of that office being around 40. The facts of this matter are not in dispute. I find Ms Mozsny to be a totally honest witness who gave her evidence to the best of her recollection. The only other witness was Ms Tait, who was called on behalf of the Respondent. She was the service centre manager at the office in which Ms Mozsny worked at the time of the injury back in December 2016. I am satisfied that she is a totally honest witness who gave her evidence to the best of her recollection.THE ISSUE The issue in this matter is a narrow one. It is whether the knee condition suffered by Ms Mozsny was a condition “arising out of, or in the course of” Ms Mozsny’s employment by the Department of Human Services. It is important to note that, in a situation such as this, the Tribunal is bound to apply the law. That law consists of the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth), as interpreted by the courts, and in this case, as interpreted by the High Court of Australia. It is not a matter in which, sitting as the Tribunal, I have a discretion as to the result. It is not a matter of simply looking at what is fair. Instead, it is a matter of strictly applying the law.LEGISLATION The relevant legislation is contained in the Safety, Rehabilitation and Compensation Act 1988 (Cth). Section 14 of that Act provides that Comcare:Is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. An injury is defined in section 5A of the Act, and the relevant provision reads, in part, subsection 1:(1) In this Act:“injury” means: …(b) 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 employee’s employment Section 6 of the Act gives further guidance as to what is meant by an injury arising out of or in the course of employment, but it is not a restrictive definition. It provides a list of circumstances which come within the definition, but it does not limit the circumstances in which I can treat the injury as having arisen out of or in the course of employment. None of those provisions are directly relevant in this matter.THE DECISION OF THE HIGH COURT IN HATZIMANOLIS V ANI CORPORATION LIMITED

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Finally, I accept the Respondent’s argument that the use of Departmental time and resources by Ms Lehtonen does not equal encouragement or direction. There was a later Christmas lunch that was held annually within the office. However, I do not make any finding in relation to whether had the injury occurred at such a lunch, whether it would be compensable. I do this quite deliberately because it has not been fully argued before me, and it is not necessary that I make that decision as part of the process of reaching the conclusion I have reached. That may well be for another occasion, and I expressly note that anything I have said should not be taken as a finding in relation to such an event. It is not the event with which I am concerned. CONCLUSION The reviewable decision, being the decision of Comcare made 6 March 2017, denying liability to pay compensation to Ms Mozsny in respect of an injury to her left knee sustained on 10 December 2016 will be affirmed.

Ratio Decidendi

Legal Principle Established

Section 6 of the Act gives further guidance as to what is meant by an injury arising out of or in the course of employment, but it is not a restrictive definition. It provides a list of circumstances which come within the definition, but it does not limit the circumstances in which I can treat the injury as having arisen out of or in the course of employment. None of those provisions are directly relevant in this matter.THE DECISION OF THE HIGH COURT IN HATZIMANOLIS V ANI CORPORATION LIMITED Counsel for the Respondent cited a number of previous decisions of courts and this Tribunal relevant to this matter. Whilst they are certainly helpful in making a decision, many of them are really examples of the application of the law in different circumstances. It is important to note that in each case liability must be assessed on the basis of the facts of the particular matter. However, the decision of the High Court in Hatzimanolis v ANI Corporation Limited[1] sets out guidance as to the application of the relevant sections of the Act. It is a lengthy quotation, but I will read it as part of my decision as it may assist Ms Mozsny in understanding the decision which I have reached. [1] (1992) 173 CLR 473. The High Court discussed the “course of employment” in the following terms:For the purposes of workers’ compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work. Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home. On the other hand, there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work.[2] [2] Ibid at 483. The Court then goes on to discuss examples of this:And the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment “and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen”.[3][3] Ibid at 484.FACTS