Re Bilton and Comcare

Case [1997] AATA 838

Ricaud and Linfox Australia Pty Ltd (Compensation) [2016] AATA 202 (1 April 2016)

Division

GENERAL DIVISION

File Numbers

2014/4609 and 2015/1970

Re

Jean-Michel Ricaud

APPLICANT

And

Linfox Australia Pty Ltd

RESPONDENT

DECISION

Tribunal

Miss E A Shanahan, Member
Date 1 April 2016
Place Melbourne

The Tribunal sets aside the decisions under review and substitutes its decision that:

(i)       Mr Ricaud sustained an injury resulting in incapacity and impairment arising out of and in the course of his employment, involving an initial physical injury namely neuropraxia of the right ulnar nerve and a secondary psychological injury, namely post-traumatic stress disorder with depression and anxiety; and

(ii) the Respondent is liable in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) to make weekly payments of compensation in respect of those periods when Mr Ricaud’s earnings were less than his normal weekly earnings; and

(iii) in accordance with s 16 of the SRC Act the Respondent is liable to make payments for the cost of medical expenses incurred for both injuries; and

(iv)     the matter is remitted to the respondent to calculate the payments; and

(v) costs are awarded against the Respondent in accordance with s 67 of the SRC Act.

.................................[sgd].......................................

Miss E A Shanahan

WORKERS’ COMPENSATION – injury occurring at work and in the course of normal work activities – crush injury to the right upper arm – ulnar nerve neuropraxia – persistent paresis – secondary psychological injury – post-traumatic stress disorder – s 14 liability – effect of s 6(3) negating liability if the action was voluntarily and unreasonably submitted and involved abnormal risk of injury – applicant conceded there was an abnormal risk of injury – not voluntary nor unreasonable in the circumstances – decision set aside

Legislation

Safety, Rehabilitation and Compensation Act 1988

Administrative Appeals Tribunal Act 1975

Social Security and Veterans’ Affairs Legislation Amendment Act 1988

Safety, Rehabilitation and Compensation Regulations 2002

Cases

Re Bilton and Comcare [1997] AATA 838

Re Courtis and Linfox Armaguard Pty Ltd (2009) ALD 682

Mendez v Telstra Corporation Ltd (1998) 147 FLR 394

Re Grime and Telstra Corporation (1994) 20 AAR 43

Re Kemp and K & S Freighters Pty Ltd (2011) 123 ALD 79 2011

Re Ralser and Comcare [2012] AATA 510

Comcare Australia (Defence) v O’Dea (1997) 150 ALR 318

Taylor v Stapley (1954) 90 CLR 1

REASONS FOR DECISION

Miss E A Shanahan

1 April 2016

  1. On 3 June 2014 Mr Ricaud suffered an injury to his ulnar nerve when his upper arm was compressed between two rigid horizontal bars (the sealing bar and the roller guide) of a shrink wrapping machine. Mr Ricaud had performed the role of operating this machine for 11 years, between September 2003 and June 2014, as part of his employment duties with Linfox Tobacco.

  2. Mr Ricaud’s right ulnar nerve neuropraxia has not resolved and he has not worked since 11 December 2014, at which time suitable modified duties were said to be no longer available.…

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Details
AGLC
Re Bilton and Comcare [2016] AATA 202
Case
[1997] AATA 838
Decision Date

CaseChat Overview and Summary

Jean-Michel Ricaud lodged an application with the Administrative Appeals Tribunal (the AAT) seeking review of a decision by Comcare, who found that his injury was not incurred in the course of his employment as a store-person for Linfox Tobacco. The Tribunal was required to determine whether Mr Ricaud's injury was sustained in the course of his employment and thus compensable under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The key issue was whether Mr Ricaud's actions in placing his arm into the shrink wrapping machine amounted to serious and wilful misconduct, which would exclude his injury from compensation under the Act.

The Tribunal found that Mr Ricaud's actions, while negligent, did not constitute serious and wilful misconduct. The Tribunal noted that Mr Ricaud was unaware of the specific dangers of the machine and there were no explicit warnings on the front of the machine. Furthermore, there was evidence that other employees also placed their hands in the machine, indicating a systemic issue rather than individual recklessness. The Tribunal concluded that Mr Ricaud's injury was incurred in the course of his employment and thus compensable. The Tribunal found that while Mr Ricaud's actions were negligent, they did not meet the threshold of serious and wilful misconduct. The decision was made in favour of Mr Ricaud, and Comcare was directed to pay compensation for the injury sustained.

Orders

Orders of the court

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Background

Background to the litigation

It was agreed by the parties and acknowledged by the Tribunal that there was no question as to the diagnosis of right ulnar nerve neuropraxia, its persistence and the development of a secondary psychological disorder as a result of the physical injury. While the T-documents contain a vast amount of medical opinion and reference to medical records and investigations, these were accepted by the Tribunal and no further medical evidence was called. It was equally apparent from these reports that Mr Ricaud’s injuries persisted as does the incapacity arising from them and that his medical treatment had been limited. BACKGROUND TO THE APPLICATION Mr Ricaud arrived in Australia from Mauritius in October 2001 and obtained employment with Linfox Tobacco as a casual store-person in December 2001. In Mauritius he had worked as a computer technician. In late 2003 he became a full time permanent employee of Linfox. His duties as a store person involved what is termed picking, that is, filling orders for cigarettes, tobacco and related products, placing them in stacked bundles and taking them on a trolley to the machine known as the shrink wrap machine, which is part of a heat tunnel. Store-persons working at Linfox Tobacco in Notting Hill rotate their duties every one to two hours. Of the average 22 or 25 workers on each shift not all were shrink wrap machine operators. The exact number of people qualified to perform this task is uncertain, with Mr Ricaud stating it was 6 of 22 but the team leader believing it was up to 9 or 10 of 25. The routine is that picking starts at 10.00am. When 15 to 20 trolley loads of orders have been assembled, the shrink wrap machine is turned on at 10.30am. On an average day somewhere in the vicinity of 1,800 orders are dealt with. On a busy day, usually a Wednesday, this may be 2,200 or more so called picks. Throughput is also measured in sticks, a stick equating to one cigarette. Mr Ricaud commenced operating the shrink wrap machine at 10.30am on 3 June 2014. Some 15 to 20 trolleys were said to be awaiting wrapping of orders. Most of these contained up to 10 items per parcel. Ten minutes into this shift, Mr Ricaud noted that a parcel entering the shrink wrap area was about to fall. In what he describes as a reflex response, he attempted to push the carton back in line by reaching between the sealing bar below and the shrink wrap guiding bar above. The rising sealing bar trapped and compressed Mr Ricaud’s right upper arm just above the elbow. As Mr Ricaud was unable to withdraw his arm from the shrink wrapping machine he pressed the emergency stop button with his left hand. While this stopped the power supply it did not deactivate the air-compressor that operates the sealing bar. A work colleague endeavoured to free Mr Ricaud’s arm using a crow bar to prise open the gap between the two rigid structures. Mr Ricaud’s arm was freed after approximately five minutes. Mr Ricaud immediately experienced severe and constant pain in his right upper arm with a burning sensation in the forearm and numbness and tingling in his fingers. He was taken to the nearest general practice and, after being seen by a doctor, was transferred to the accident and emergency department of the Valley Private Hospital. At Valley Private Hospital he was seen by a Dr West and underwent an ultrasound examination of his right upper arm. This lead to a diagnosis of right ulnar nerve neuropraxia.

Evidence

Evidence Before The Court

On 11 December 2014 Mr Ricaud was called to see Ms Preeta Nambiar who is the contract manager of the Notting Hill tobacco complex. He was told that modified duties could no longer be provided. He was stood down indefinitely. Mr Ricaud has not worked since. ORAL EVIDENCE BEFORE THE TRIBUNALMr Jean-Michel Ricaud The medical aspects relating to Mr Ricaud’s injury have been set out above under Background to the Application. Mr Ricaud gave further detailed evidence regarding his duties and his training. Mr Ricaud said that when he started working for Linfox Tobacco in 2001 he received no training whatsoever but learnt on the job. He attended the toolbox meetings, but was not certain he attended every week. He agreed employees were told not to put their hands into the shrink wrapping machine nor the heat tunnel. Despite this, he said that all employees who operated this machinery did put their hands into the area of the shrink wrapper. To Mr Ricaud’s knowledge there were 8 to 10 store persons working in his warehouse who operated the machine on a rostered daily basis. He said that employees could not see the signs stating Warning Keep Hands Clear from the front of the machine, the heat tunnel, or from the side on which the operator stands. Mr Ricaud had knowledge of Mr Bruce Utting having his arm trapped in the heat wrapping machine in approximately 2009, but was aware that he had not suffered any injury as a result. Mr Ricaud explained that parcels placed in front of the ram progressed from the table, across the gap between the steel shelf and the conveyor belt and then stopped on the conveyor. He estimated that one in five parcels placed in front of the ram became mal-aligned during this process. In his experience, if items were mal-aligned or displaced prior to the sealing bar descending, they were likely to be compressed, that is, squashed, by the descending sealing bar. Mr Ricaud was unaware of the presence of a sensor on the lower surface of the sealing bar, or that there was no sensor on the upper surface of the sealing bar. When advised of the sensor operating during the descent of the bar, he concluded that given his experience it must frequently fail to work. According to Mr Ricaud there was pressure to maintain a rapid throughput of orders and that stopping the process, either by turning off the machine or opening the gate behind the heat sealing compartment, resulted in the loss of approximately six to ten seconds in the throughput time of an order. On occasions when the plastic wrap that spans the heat wrapping compartment was not placed properly, it was necessary to remove the scrambled plastic wrapping material. Those orders that were incorrectly wrapped had to be taken back to the front of the machine and the process repeated. Three weeks after his injury at work, Mr Ricaud took a photograph of the shrink wrapping machine and this was tendered into evidence (Exhibit A1). Mr Ricaud was uncertain as to whether the machine depicted in the photograph was the same machine that has been depicted in the video shown by the respondent to all witnesses.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Following Mr Ricaud’s injury, Linfox undertook several measures to prevent a similar occurrence. The air-compressor activation and deactivation system was altered so that there is now no lag time in the reduction of air-compressor pressure when the power is turned off on the shrink wrapping machine, the rigid guiding bar at the upper extremity of the wrap machine was removed and the sealing bar itself was altered so that it is no longer rigid and now collapses. It is not clear whether the sensor remains on the lower side of the now collapsible sealing bar. Video recording of wrap machine operations and photographs of this machine The Tribunal has been provided with still photographs of the controls of the machine, the actual shrink wrap area of the machine and the ram following the safety installations that occurred following the accident. Photographs have also been provided displaying the warning signs saying KEEP HANDS CLEAR. These are placed on the back and the sides of the machine but are not visible from the front. Mr Ricaud had himself taken a photograph of the machine he was operating at the time he sustained he sustained his injury (Exhibit A1) and this clearly differs from the machine displayed in the video. The video has been shown to all of the witnesses who gave oral evidence. The Tribunal has as a result seen it at least seven times and viewed it outside of the hearing. The machine was identified by Mr Felix as being a machine in operation in a country centre. The video runs for approximately 1 minute and 12 seconds and shows a female worker loading rectangular shaped collections of items in front of the so called ram. Following this she pushes two green buttons on the table activating the ram that projects the items into a veil of plastic wrap. This surrounds them in the transverse diameter and the sealing bar then descends, heat seals the plastic wrap and the parcel, which still has either side unsealed, moves on into the heat tunnel. The procedure appears to take probably five to six seconds, although the speed of the video is not known to the Tribunal. On occasion in the video of the sealing of approximately six parcels, there is a deviation from the midline with the parcel pile being slightly askew when plastic wrapped. On one occasion the plastic wrap fails to envelop the items and flaps in the breeze like a sheet on the line. The video also shows the female worker accessing the heat wrapper machine via the side entry gate which, when opened, disconnects all power (Video, Exhibit R10).RELEVANT LEGISLATION Section 14 of the SRC Act provides for compensation for injuries stating: 14 Compensation for injuries(1)Subject to this Part, 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.(2)Compensation is not payable in respect of an injury that is intentionally self‑inflicted.(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.