Parsons Brinckerhoff Australia Pty Ltd v Vanceva - [2011] NSWWCCPD 72

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Parsons Brinckerhoff Australia Pty Ltd v Vanceva [2011] NSWWCCPD 72
APPELLANT:		Parsons Brinckerhoff Australia Pty Ltd
RESPONDENT:		Ana Vanceva
INSURER:		CGU Workers Compensation (NSW) Limited
FILE NUMBER:		A1-3494/11
ARBITRATOR:	Ms E Grotte
DATE OF ARBITRATOR’S DECISION:		12 September 2011
DATE OF APPEAL DECISION:		14 December 2011
SUBJECT MATTER OF DECISION:		Section 11 of the Workers Compensation Act 1987; meaning of “place of employment”; whether worker was temporarily absent from her place of employment while buying coffee; personal injury
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore Lawyers
Respondent:	Walker Legal
ORDERS MADE ON APPEAL:		The Senior Arbitrator’s determination dated 12 September 2011 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

INTRODUCTION

The issue in this case is whether the worker received a “personal injury” in circumstances to which s 11 of the Workers Compensation Act 1987 (the 1987 Act) apply. That section provides:

“11 Recess claims

If a worker on any day on which the worker has attended at the worker’s place of employment pursuant to the worker’s contract of service or training contract:
(a) is temporarily absent from that place on that day during any ordinary recess or authorised absence,
(b) does not during that absence voluntarily subject himself or herself to any abnormal risk of injury, and
(c) receives a personal injury during that absence,
the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.”

The case turns on the meaning of the phrase “place of employment”, which is not defined in the Workers Compensation Acts, and whether the worker was temporarily absent from that place when she fell and suffered her injuries.

BACKGROUND

The respondent worker, Ana Vanceva, is an engineer. She normally worked for the appellant employer, Parsons Brinckerhoff Australia Pty Ltd, in the Ernst & Young building in the Sydney central business district. At the time of her accident, she was working on assignment with Glenfield Junction Alliance (Glenfield). Glenfield conducts its business at level 4 of Tower A at 821 Pacific Highway, Chatswood, described by counsel for Ms Vanceva as “a strata level” (T14.56).
On the morning of 11 October 2010, Ms Vanceva was performing her usual duties at her desk on level 4 of Tower A. At about 11.30 am, she left level 4 and caught the lift to a lower level, walked down some stairs and left the building through a rotating door on the ground floor. She then walked down some more stairs to a café in the ground floor of Tower B, also at 821 Pacific Highway. The Towers are known as Zenith Towers and, though they are on the same block of land, they are separate buildings. They share a common foyer, courtyards and ground level.
After arriving at the café, Ms Vanceva ordered and paid for a coffee. While waiting for her coffee, she had a seizure and fell to the ground, injuring her head. She was taken to Royal North Shore Hospital, where she was diagnosed with a subdural and extradural haematoma and a fracture of the zygomatic arch. She claimed compensation from 11 October 2010 to 15 March 2011.
Ms Vanceva claimed that she received a personal injury while temporarily absent from her place of employment during an ordinary recess under s 11.
The appellant’s insurer disputed liability on the following grounds:
(a)     that Ms Vanceva did not suffer an injury arising out of or in the course of her employment with the respondent;
(b)     that her employment with the respondent was not a substantial contributing factor to the injury;
(c) that her injury was not sustained while on a recess pursuant to s 11 of the 1987 Act;
(d)     that she was not temporarily absent from her workplace at the time of her seizure/fall on 11 October 2010; and, in the alternative,
(e)     that she did not suffer a “personal injury” within the definition of the 1987 Act.
The appellant’s argument was that Ms Vanceva was not temporarily absent from her place of employment “because she had not left the building because the café where she suffered the seizure is located in the same building and the same block of land as her workplace”. It was also argued that Ms Vanceva became sick when she suffered the seizure, which caused her to fall and caused her to hit her head. She did not “get hurt, but became sick”. The seizure was due to a medical condition.
The Senior Arbitrator did not accept the appellant’s submissions. She held that, applying commonsense, once Ms Vanceva crossed the boundary between the café and the rest of the tower complex and entered the café with the intention of obtaining refreshment, she was on an ordinary recess from her work, and it could not be said that her employer had any control over, or management of, the interior of the café. Therefore, at the time of the fall, Ms Vanceva was temporarily absent from her place of employment and was on an ordinary recess under s 11.
On the issue of whether Ms Vanceva had received a “personal injury”, the Senior Arbitrator said that Ms Vanceva’s injuries constituted a “sudden or identifiable pathological change in the body” (Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 (Zickar)) in the form of a cerebral bleed, a fracture and symptoms of dizziness and headache, and had therefore received a personal injury. She rejected the appellant’s argument that the injury was caused by a medical condition, namely, the seizure, and that the fall would not have occurred, and no injury been received, but for the seizure. The Senior Arbitrator said that, if Ms Vanceva had fallen in the café without any seizure, she would have an entitlement. The fact of the seizure did not disentitle her.
The employer has appealed the Senior Arbitrator’s decision.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Senior Arbitrator erred in:
(a) finding that the worker was on an ordinary recess or authorised absence at the time of the incident on 11 October 2010 (ordinary recess), and
(b) finding that the worker received a “personal injury” during that absence (personal injury).

SUBMISSIONS

On the first issue, the appellant submitted that:
(a)     the Senior Arbitrator failed to consider the appellant’s case, namely, that the café was “within both the same building (Zenith Towers) and the same block of land as her workplace, albeit within a different tower (Tower A [sic] as opposed to Tower B [sic])”;
(b) the Senior Arbitrator failed to properly consider the appellant’s argument that a comparison should be drawn between the definition of “place of abode” in s 10 of the 1987 Act and the interpretation of “place of employment” in order to ascertain the meaning of “place of employment” for the purposes of s 11;
(c)     as s 10(4) provides that a journey from a worker’s place of abode commences at, and a journey to a worker’s place of abode ends at, the boundary of the land on which the place of abode is situated, the Senior Arbitrator should not have reasonably considered that the worker left her place of employment to obtain her coffee at the café because she had not left the “boundary” of her place of employment (which extended to the boundary of both Towers A and B, both situated at 821 Pacific Highway);
(d)     Calvert v Soden (1994) 10 NSWCCR 139 (Calvert) and Musumeci v GEM Engines Pty Ltd (2002) 23 NSWCCR 128 (Musumeci) support the proposition that the worker could not have commenced a recess on 11 October 2010 as she had not left the boundary of her workplace because the café was clearly within that boundary. It follows that the worker was not “temporarily absent from her place of employment” at the time of the fall.
On the second issue, the appellant submitted:
(a) the Senior Arbitrator erred in stating (at [64]) that, had Ms Vanceva merely fallen in the café and sustained the injuries she did without any seizure, she would have an entitlement. The worker clearly suffered a medical condition, being a seizure and there was no evidence of a pathological change due to the medical condition. She suffered a seizure which caused her fall, not the other way round, and
(b) accordingly, the worker did not receive a personal injury at the time of the incident on 11 October 2010.

DISCUSSION AND FINDINGS

Ordinary recess

I do not accept the above submissions.
The appellant’s reliance on Calvert and Musumeci is misplaced. Both cases concerned the journey provisions in s 10 of the 1987 Act, not the recess provisions in s 11. The Senior Arbitrator considered both cases and the appellant’s argument based on them. In Calvert, the worker fell on the common property of a block of units where he lived. Applying s 10(4), Johns CCJ held that, as the worker had not crossed the boundary of the land on which his place of abode was situated, he had not commenced his journey and was not on a journey at the time of his fall. This decision concerned whether the worker had left his place of abode and started a journey to his place of employment. It does not apply to the current matter.
In Musumeci, the worker arrived at his employer’s car park and, before he left the car park and “bundied-on” to start work, was stabbed by an ex-employee due to a private dispute unrelated to his employment. The car park and the employer’s factory buildings were enclosed by a tall, metal and wire mesh fence. The issue was whether he was still on a journey at the time of the stabbing, or whether he had arrived at his place of employment.
Quirk CCJ stated (at [18]) that, for the purpose of s 10, a “journey” had to have a starting point and an end point “in temporal terms” and could not “be artificially extended to when the worker actually commences his daily labours”. Relying on decisions made under the Workers’ Compensation Act 1926 (the 1926 Act), which did include a definition of “place of employment”, her Honour said that a journey did not commence until the worker had reached either a public street or highway, or such place as could be used by members of the public (Russell v Sydney County Council [1967] 41 WCR 68 (Russell) and Young v Albury & Border Pastoral, Agricultural, Horticultural and Industrial Society [1932] 6 WCR 201 (Young)). Her Honour therefore concluded that, on the facts before her, the worker’s journey had ended when he parked his car in the employer’s car park and, even though he had not reached the building where he was to perform his duties, he had reached his place of employment.
After referring to the above authorities and the appellant’s submission that, based on those authorities, Ms Vanceva should not be considered to have left her place of employment to obtain her coffee because she had not crossed the “boundary” of her place of employment, the Senior Arbitrator found, at [54]–[55]:
(a) the intention of s 11 is to cover injuries sustained during a break in work taken for the purpose of refreshment or relaxation;
(b)     the concept of “recess” is to cover a relatively brief interruption to work;
(c)     the section is intended to cover injuries that occur in places over which the employer has no control or management;
(d) for the purpose of a journey claim, the worker’s place of employment could have a wide definition and extend the boundary of her place of employment beyond level 4 to the public street or highway. The legislature specifically qualified s 10 to extend the boundaries relevant to the delineation of a place of abode to ensure that employers were not liable for injuries that occurred in stairwells of apartment buildings. If the legislature had wished to qualify s 11 in the same way, it would have done so. There is no restriction or extension in respect of boundaries in s 11;
(e)     commonsense ought to be applied in determining when or where the recess begins or ends;
(f)      applying commonsense, once Ms Vanceva crossed the boundary between the café and the rest of the Tower complex, and entered the café with the express intention of obtaining refreshment, she was on an ordinary recess from her work. It could not be said that Ms Vanceva’s employer had any control over, or management of, the interior of the café in which the business of making and dispensing refreshments and food was carried out;
(g)     there was no suggestion that Ms Vanceva’s absence from her place of employment was not accepted or authorised by her employer. Staff regularly went to get food and coffee from the café, and took a break from work to do so, and
(h)     there was no evidence that Ms Vanceva exposed or subjected herself to any abnormal risk of injury.
The Senior Arbitrator concluded (at [56]) that, at the time of the fall in the café, Ms Vanceva was temporarily absent from her place of employment on an ordinary recess in accordance with s 11 of the 1987 Act. It followed that, contrary to the submissions on appeal, in a carefully prepared and well-reasoned decision, the Senior Arbitrator did consider the appellant’s case, but did not accept it. The real challenge on appeal is not that the Senior Arbitrator did not consider the appellant’s arguments but that she erred in not accepting those arguments.
I do not believe the Senior Arbitrator erred in not accepting the appellant’s submissions.
The appellant’s argument that Ms Vanceva had not left her place of employment at the time of her fall rests on the assumption that the start and end point of a journey in relation to a place of abode in s 10(4) should apply to “place of employment” in s 11. There is no basis for that assumption.
Section 10 applies to certain specified journeys. One such journey is a daily or other periodic journey “between the worker’s place of abode and place of employment”. Section 10(4) states that:
“(4) For the purposes of this section, a journey from a worker’s place of abode commences at, and a journey to a worker’s place of abode ends at, the boundary of the land on which the place of abode is situated.”

The term “place of abode” is defined in s 10(6) to include the place where the worker has spent the night preceding a journey and from which the worker is journeying, and the place to which the worker is journeying with the intention of there spending the night following a journey. There is no definition of “place of employment” in s 10 or any other part of either the 1987 Act or the 1998 Act, and no equivalent of s 10(4) dealing with the start or finish of a journey in relation to the place of employment.
The first thing to note about subsection (4) of s 10 is that it is expressly stated to be “for the purposes of this section”. There is therefore no justification for transposing the words that define the commencement and completion of a s 10 journey, with respect to a “place of abode”, to s 11. Section 11 is concerned with a completely different question to that raised in s 10. It is concerned with whether a worker is temporarily absent from his or her place of employment during an ordinary recess or authorised absence. Section 10 is concerned with the commencement and completion of a specified journey.
Nothing in Calvert or Musumeci supports the employer’s position. To be entitled to compensation for an injury received on a journey, a worker must have received a personal injury “on any journey to which” s 10 applies. There has to be a start and a finish to the journey.
Calvert concerned the terms of s 10(4) which relate exclusively to the commencement and conclusion of a journey in the context of a worker’s place of abode. If the legislature intended to have an arbitrary line, such as the border of the land on which the employer’s premises are situated, to determine if a worker is, in the context of s 11, temporarily absent from his or her place of employment, it could easily have said so. That fact that it did not suggests that the approach in s 10(4) does not apply to s 11.
In Musumeci, it was expressly noted that the car park and the employer’s buildings were enclosed by a tall, metal and wire mesh fence. By entering the car park, Mr Musumeci had entered the employer’s premises, though he had not started work. This provided a sound basis for concluding that his journey had ended. It does not provide any support for the proposition that, in a claim under s 11, a worker is not “absent from” the worker’s place of employment unless he or she has crossed the boundary of the land on which the employer’s premises are located.
Section 11 is not drafted in terms of the commencement or end of an ordinary recess, but in terms of a worker having attended at the worker’s place of employment “pursuant to the worker’s contract of service” and being “temporarily absent from that place”. There is therefore no justification for extending the wording in s 10(4), which deals with the commencement or end of a journey with regard to a worker’s place of abode, to the interpretation to place of employment in s 11.
The term place of employment was defined (for all purposes of the Act) in the 1926 Act as:
“The premises, works, plant or place for the time being occupied by or under the control or management of the employer by whom the worker concerned is employed, and on or at or in connection with which the worker was employed at the time of the injury.”
This definition was generally interpreted to mean that a worker had not commenced a journey until he or she was “subjected to the risks common to the whole community in the use of public highways” (Young), or until he or she had “emerged onto the public street” (Russell) or had left the area under the control or management of the employer.
However, the legislature chose to omit this definition of place of employment from the 1987 Act and has not replaced it with any other definition. That may be because a worker’s place of employment is often not restricted to one place: it is wherever the worker is required to perform his or her duties. The meaning of the phrase “place of employment” must now be determined by reference to the ordinary principles of statutory construction. The question of the meaning to be given to words and expressions within an Act with no special or technical meaning is a question of fact (Hope v Bathurst City Council (1980) 144 CLR 1; Comcare Australia (Defence) v O’Dea (1997) 150 ALR 318).
Courts must interpret words in the context of the legislation in which they appear (OV & OW v Members of the Board of the Wesley Mission Council [2010] NSWCA 155). The Commission must read s 11 in the context of the legislation as a whole, having regard to the purpose of all the provisions in the statute (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Wilson v State Rail Authority of New South Wales [2010] NSWCA 198). The purpose of the legislation is to provide compensation to workers injured in certain defined circumstances.

As the Senior Arbitrator observed, s 33 of the Interpretation Act 1987 requires that, in the interpretation of an Act, a construction that would promote the purpose or object underlying the Act (whether or not that purpose or object is expressly stated in the Act) shall be preferred to a construction that would not promote that purpose or object. She also observed that the Workers Compensation Acts provide for the compensation or rehabilitation of workers in respect of work-related injuries, and that it is socially beneficial legislation and should be interpreted in a way that promotes its purpose. I agree with these statements and the appellant has not challenged them on appeal.
Entitlements under beneficial legislation should not depend on “distinctions which are too nice” (per Mahoney JA in Articulate Restorations & Developments Pty Ltd v Crawford (1994) 10 NSWCCR 751 at 765). At the same time, the principle that beneficial legislation should be given a liberal construction does not entitle a court to give it a construction that is unreasonable or unnatural (per McColl JA in Amaca Pty Ltd v Cremer [2006] NSWCA 164, citing IW v City of Perth [1997] HCA 30; 191 CLR 1 (at 11–12) per Brennan CJ and McHugh J).
The history of the legislation is also relevant. The recess provisions were originally introduced in 1951 to overcome the decision in Flanagan v Great Northern Wool Dumping & Stevedoring Co Pty Ltd (1949) 49 SR (NSW) 340. In that case, a worker on an authorised recess was denied compensation because his injury did not arise out of or in the course of his employment. That was principally because the worker received his injury away from his place of employment.
The history of the legislation suggests that Parliament introduced the recess provisions to broaden the circumstances in which compensation could be recovered. However, since 1951, Parliament has added s 9A to the 1987 Act, which states that no compensation is payable in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
Section 9A clearly narrows the circumstances in which a worker will be entitled to compensation. However, it does not apply in respect of an injury to which ss 10, 11 or 12 apply (s 9A(4)). That is because, with respect to recesses taken away from the worker’s place of employment, the worker may not be in the course of his or her employment and it will be difficult to satisfy s 9A. It is reasonable to conclude that, by expressly excluding s 11 from the operation of s 9A, the legislature did not intend to narrow the circumstances in which the recess provisions apply.
In the text Workers Compensation (New South Wales), Butterworths, 1979, the author, C P Mills, said (at 212) that the word “recess” denotes a relatively brief interruption in an otherwise continuous period of work, a break associated with rest, refreshment or relaxation. He added that “not every period of absence from the place of employment with the permission of the employer is an ‘ordinary recess’” (Morton v Beckett [1971] WCR 293). There are no authorities cited in the text dealing with “place of employment” in the context of the recess provisions in the 1926 Act.
The Senior Arbitrator was right to conclude that s 11 is intended to cover injuries sustained during a break in work taken for the purpose of refreshment or relaxation. I do not, however, believe that the matter is as simple as applying commonsense to determine if a worker is temporarily absent from his or her place of employment, as the Senior Arbitrator suggested at [54] of her decision. It is a question of statutory construction applying the principles set out above. Applying those principles, I have reached the same conclusion as that reached by the Senior Arbitrator.
While I agree that the café was a place over which Ms Vanceva’s employer had no control or right of control, it does not necessarily follow from that fact that Ms Vanceva was absent from her place of employment when she fell. It is doubtful that the employer had any control over Glenfield’s premises at level 4 of Tower A at 821 Pacific Highway, Chatswood. However, it is not disputed that that was Ms Vanceva’s place of employment on the day of the accident. The employer’s right to control the premises where the accident occurs may be relevant to deciding if a worker is temporarily absent from his or her place of employment, but it is not determinative.
It is neither necessary nor appropriate to attempt to define a place of employment. Each case will depend on its own facts. In the present case, treating Glenfield as the employer, as the parties appear to have done, it is relevant that that company only occupied one level in one of the two towers at 821 Pacific Highway, Chatswood (apparently as owner of the strata title to that level). Unlike Musumeci, it did not occupy a site enclosed by a fence. Its premises (level 4 in Tower A) were not open to the public. On the other hand, the foyer and courtyards of both Tower A and Tower B at 821 Pacific Highway were open to the public. The café, which is situated on the ground floor of Tower B, was also open to the public. It is therefore difficult to describe the whole of Tower A as Ms Vanceva’s place of employment, let alone the whole of the block of land at 821 Pacific Highway, Chatswood.
Ms Vanceva performed her work at Glenfield’s premises. Those premises were restricted to level 4 of Tower A. In the absence of any arbitrary statutory formula to delineate the boundary of the worker’s place of employment for the purpose of s 11, considering the words used, the context in which they are used in the section, the context of the section in the legislation overall, the history of the legislation, and the purpose of the section, the worker’s place of employment was either level 4 of Tower A at 821 Pacific Highway, Chatswood, or, perhaps, the whole of Tower A. In all the circumstances, I believe that level 4 of Tower A is the correct place of employment in this case. However, on either definition, Ms Vanceva was temporarily absent from her place of employment when she suffered a seizure in the café on the ground floor of Tower B on 11 October 2010.
The café was not a place where Ms Vanceva performed any part of her work and was not a place where her employer (or Glenfield) conducted any of its business or over which it (or Glenfield) had any control or right of control. The evidence is therefore clear that, at the time of her seizure, Ms Vanceva was temporarily absent from her place of employment. This conclusion is not unreasonable or unnatural, but follows from the ordinary meaning of the words used in beneficial legislation and a purposive construction of those words.
The definition urged by the employer would result in the artificial conclusion that, having left the place where she was performing her work (level 4 of Tower A), Ms Vanceva was still at her place of employment just because she had not crossed the boundary of the land on which that place was situated. In the circumstances of this case, that would be a capricious and unnatural result. The Commission should avoid an interpretation that produces such a result, unless the statutory language is intractable (Tickle Industries Pty Ltd v Hann [1974] HCA 5; 130 CLR 321 at 331). With respect to a journey to or from a worker’s place of abode in s 10, the legislation is clear. However, there is no such arbitrary definition of the commencement and conclusion of a temporary absence from a worker’s place of employment in s 11 and there is no justification for importing s 10(4) into s 11.
It follows that the Senior Arbitrator correctly concluded that Ms Vanceva was temporarily absent from her place of employment when she suffered a seizure on 11 October 2010.

Personal injury

The Senior Arbitrator concluded that a “personal injury” in the 1987 Act is a “sudden and identifiable change in the body, whether internal or external” (Zickar). In the present case, Ms Vanceva fell and hit her head on the floor of the café. As a result, she suffered a brain injury, a subdural and extradural haematoma, and a fracture of the zygomatic arch. The Senior Arbitrator had no doubt that those injuries constituted a “sudden or identifiable pathological change in the body”. Those changes were in the form of a cerebral bleed and a fracture. The appellant has not disputed that those changes occurred.
The Senior Arbitrator noted the appellant’s submission that the injuries had been caused by the seizure, that is, a medical condition, and that, had the seizure not occurred, the fall would not have occurred and Ms Vanceva would not have been injured. The Senior Arbitrator rejected that submission, stating (at [64]) that, if Ms Vanceva had merely fallen in the café (without a seizure) and received her injuries, she would still have been entitled to receive compensation under s 11.
The appellant has challenged that finding. It has submitted that Ms Vanceva suffered a medical condition (the seizure) and there was no evidence of a pathological change due to that medical condition. She suffered a seizure that caused her to fall, not the other way round. Accordingly, so it was argued, Ms Vanceva did not receive a personal injury on 11 October 2010.
The Senior Arbitrator’s conclusion is correct. The appellant’s submission is misconceived and more than a little surprising. Section 11 is not concerned with causation. If a worker receives a “personal injury” in the circumstances to which s 11 apply, he or she is entitled to the benefits of the Act because the injury is, for the purposes of the 1987 Act, an injury arising out of or in the course of employment and compensation is payable accordingly. The Senior Arbitrator found that Ms Vanceva had received a personal injury in circumstances to which s 11 apply.
The appellant’s submissions appear to be directed to s 10(1D) of the 1987 Act, which provides that subsection (1) of s 10 does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury. That provision applies to journey claims and has no application to claims under s 11.
A worker is entitled to the benefits of s 11 if the personal injury is received during a temporary absence from the worker’s place of employment during any ordinary recess or authorised absence, provided that, during that absence, the worker has not subjected himself or herself to any abnormal risk of injury. Subject to the issue of “place of employment”, it was not disputed that Ms Vanceva’s injuries were received during such an absence and that she did not subject herself to any abnormal risk of injury. It was not necessary for Ms Vanceva to prove that she suffered a pathological change as a result of the seizure. The seizure is irrelevant to her entitlement under s 11. It follows that she is entitled to compensation.

CONCLUSION

The Senior Arbitrator correctly concluded that, on 11 October 2010, Ms Vanceva:
(a)     was temporarily absent from her place of employment during an authorised recess or authorised absence;
(b)     did not during that absence subject herself to any abnormal risk of injury;
(c)     received a personal injury during that absence and,
(d)     sustained an injury which was, for the purpose of the 1987 Act, an injury arising out of or in the course of her employment, and compensation was payable accordingly.

DECISION

The Senior Arbitrator’s determination dated 12 September 2011 is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Bill Roche

Deputy President
14 December 2011

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE