Rivera v KU Children's Services

[2007] NSWWCCPD 217

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE

COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Rivera v KU Children’s Services [2007] NSWWCCPD 217

APPELLANT:  Silvia Rivera

RESPONDENT:  KU Children’s Services

INSURER:Employers Mutual NSW Ltd

FILE NUMBER:  WCC2946-07

DATE OF ARBITRATOR’S DECISION:          24 July 2007

DATE OF APPEAL DECISION:  30 October 2007

SUBJECT MATTER OF DECISION: Whether injury received on a journey to work; section 10 of the Workers Compensation Act 1987

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant:      PK Simpson & Co, Solicitors

Respondent:   Edwards Michael Lawyers

ORDERS MADE ON APPEAL:  The decision of the Arbitrator dated 24 July 2007 is confirmed.

There is no order as to the costs of this appeal.

BACKGROUND TO THE APPEAL

1.On 14 August 2007, Silvia Rivera sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 24 July 2007. The Respondent to the appeal is KU Children’s Services (‘KU’).  KU’s workers compensation insurer is Employers Mutual NSW Ltd (‘EMI’).

2.Mrs Rivera was born on 20 June 1962 and is aged 45. She claims that on 25 February 1991, while working for KU as a childcare worker at its childcare centre in Enmore, she fell and injured her left wrist while taking her son to a different childcare centre in Waterloo, near where she lived, en route for work. Mrs Rivera recalls being paid workers compensation for about six weeks after the accident.

3.On 23 January 2007, Mrs Rivera’s solicitors made a claim against KU for compensation for permanent impairment in respect of a 12% loss of efficient use of the left arm below the elbow amounting to $8,400, together with medical expenses. By letter dated 22 February 2007, EMI denied liability on the ground that Mrs Rivera was not on a journey to which section 10 of the Workers Compensation Act 1987 (‘the 1987 Act’) applies.

4.On 27 April 2007, the Commission registered Mrs Rivera’s ‘Application to Resolve a Dispute’ in respect of the above claim for compensation. On 24 May 2007, EMI lodged a ‘Reply’. On 1 June 2007, the Arbitrator conducted a teleconference with the parties. On 21 June 2007, conciliation having proved unsuccessful, he conducted an arbitration hearing, at the conclusion of which he reserved his decision. On 24 July 2007, the Arbitrator issued his decision in the terms set out below.

THE DECISION UNDER REVIEW

5.The ‘Certificate of Determination’, dated 24 July 2007, records the Arbitrator’s orders as follows:

“1. Award for the Respondent.

2. There is no order as to costs.”

6.In the Statement of Reasons for his decision, the Arbitrator identified two issues for determination: first, was Mrs Rivera on a journey to which the 1987 Act applied, and if so, second, was there an interruption or deviation? The Arbitrator discussed the evidence as to the time of the accident and the time Mrs Rivera was due to start work. He found the probable time of the accident, which occurred when Mrs Rivera was taking her son to KU’s childcare centre at Waterloo, to be 8.20 am, and that it was likely that Mrs Rivera was due to start work at KU’s childcare centre at Enmore at midday (paragraph 45). The Arbitrator therefore concluded that it was improbable that, after dropping her son at KU’s childcare centre at Waterloo, Mrs Rivera would have proceeded to KU’s childcare centre at Enmore to work, since it does not take three hours to travel by bus from Waterloo to Enmore (paragraph 46).

7.The Arbitrator said earlier in his Statement of Reasons (paragraph 42):

“The Applicant may have had other responsibilities which necessitated leaving her child at child-care at 8.30 am on 25 February 1991, before she was due to embark on her journey to work later that morning.”

He commented that Mrs Rivera’s “accounts of the circumstances of injury are fraught with anomalies”, and that “[c]ircumspection in the assessment of the Applicant’s case is clearly called for” (paragraph 43).

ISSUE IN DISPUTE

8.The issue in dispute in the appeal is whether Mrs Rivera was on a journey to work when the injury occurred. Mrs Rivera’s solicitors contend that the Arbitrator’s factual findings are ambiguous, and that he failed to consider whether Mrs Rivera’s dropping off her child at the Waterloo childcare centre constituted a deviation to which section 10(2) of the 1987 Act applied. Her solicitors submit that it was not such a deviation and that there should be an award for the Applicant. The parties’ submissions are considered below.

ON THE PAPERS REVIEW

9.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.”

10.Having regard to Practice Directions Numbers 1 and 6, the documents before me, and the submissions of the parties that the appeal can 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. 

11.Neither party sought to adduce fresh evidence.

LEAVE

12.Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. First, there is no dispute that the appeal was lodged within 28 days of the Arbitrator’s decision as required by section 352(4) of the 1998 Act.

13.Second, section 352(2) requires that the amount of compensation at issue in the appeal is both at least $5,000 and at least 20% of the amount awarded in the decision appealed against. I note that as the Arbitrator awarded no compensation, the amount of compensation at issue is determined by reference to the amount of compensation claimed in the ‘Application to Resolve a Dispute’. (See, for example, the discussion in Fine Meats (Boners PM) Pty Ltd v Hart [2007] NSWWCCPD 164 (‘Hart’), at paragraphs 15 to 17, including reference to the decisions in Grimson v Integral Energy [2003] NSWWCCPD 29 and Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7.) Mrs Rivera claimed compensation of $8,400 under section 66 in respect of permanent impairment together with medical expenses under section 60. Thus, the amount of compensation at issue exceeds the $5,000 threshold (section 352(a)) and, because no compensation has yet been awarded, the 20% threshold (section 352(b)) does not apply (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5, at paragraph 22). (I note that EMI contends that the correct claim should have been for 10% loss of efficient use of the left arm, as assessed by the Approved Medical Specialist Dr Albert Bencsik, in earlier proceedings before the Commission, and that this equates to $6,772.50. Clearly, such a claim still meets the required threshold.)

14.Accordingly, I am satisfied that the section 352 threshold has been met and leave to appeal is granted.

SUBMISSIONS

15.Mrs Rivera’s solicitors contend that the Arbitrator found that Mrs Rivera was not on a journey to work “solely on what he perceives as a credit issue ... that is he does not believe the appellant was on a work journey because she says she was hurt later in the day and therefore must have gone or be on her way home”. They submit the Arbitrator’s findings are ambiguous particularly in relation to the evidence from the hospital where Mrs Rivera was treated following the accident, and in relation to the evidence of Patricia Barbieri, the Director of the Enmore childcare centre where Mrs Rivera worked. By contrast, EMI submits that the Arbitrator’s decision was factually correct and based on an analysis of the material before him. He was entitled to make those findings, which should not, therefore, be disturbed.

16.Secondly, Mrs Rivera’s solicitors contend that the Arbitrator failed to consider the application of section 10(2) of the 1987 Act. They contend that Mrs Rivera took her son to the Waterloo childcare centre on her way to work, and that without such childcare, she would have been unable to work. Thus, Mrs Rivera’s solicitors seem to imply that any interruption of or deviation from her journey to work was made for a reason connected with her employment and was part of the journey to work so that she was entitled to claim compensation in respect of her injury. They submit that if the deviation is found to be substantial, then the risk of injury was not materially increased by the deviation.

17.EMI submits Mrs Rivera’s solicitors have misconstrued the meaning of ‘deviation’ in section 10(2). To gain the protection of the Act, it must be shown that the worker met with her injury on an intended journey to work and that any interruption or deviation occurred in the course of that journey. On the facts found by the Arbitrator this was not the case. If Mrs Rivera intended to return home first, after dropping her son at the childcare centre, and then start her journey to work at some later time, the journey to the childcare centre was not one to which the Act applies.

EVIDENCE, DISCUSSION AND FINDINGS

18.The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Mrs Rivera’s solicitors must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.

19.There is no dispute that Mrs Rivera injured her left wrist in a fall on 25 February 1991. Sixteen years after the accident, the difficulty faced by the Arbitrator was in establishing what occurred in the light of conflicting evidence about the timing of events on that morning. The Arbitrator correctly identified the relevant issues as being, first, whether, at the time of the injury, Mrs Rivera was in the course of a journey between her place of abode and her place of employment and, second, if so, whether there was an interruption or deviation from that journey precluding the payment of compensation.

20.The relevant provisions of the 1987 Act, section 10(1), (2) and (3)(a), state:

“(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.

(2) Subsection (1) does not apply if:

(a)   the injury was received during or after any interruption of, or deviation from, any such journey, and

(b) the interruption or deviation was made for a reason unconnected with the worker’s employment or the purpose of the journey,

unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation.

(3) The journeys to which this section applies are as follows:

(a) the daily or other periodic journeys between the worker’s place of abode and place of employment, ...”

21.The onus is on the claimant to establish that the journey in respect of which a claim is made is one to which section 10 applies: Young v Commissioner for Railways [1961] ALR 258. As to the route of the journey, in Vetter v Lake Macquarie City Council (2001) 202 CLR 439, at paragraph 29, the High Court (Gleeson CJ, Gummow and Callinan JJ) held:

“There is no obligation upon a worker to take the shortest and most direct route from the worker's place of work to the worker's abode so long as the journey can be said to be a journey between the worker's place of abode and place of employment. And there is no reason why a worker might not, within the statutory meaning of a journey, choose a route, albeit an indirect and longer one, which may enable the worker to achieve a purpose in addition to the purpose of reaching the worker's residence in order to spend the interval between ceasing and recommencing work, again provided that the journey still has a character of a journey between his or her place of work and place of abode, and there is no material increase in risk during or after any deviation or interruption. That is what the Act requires.”

22.As Kirby J noted, at paragraph 85:

“So long as the journey in question can fairly be characterised as a "journey", or part of a "journey", within s 10, questions of interruption and deviation must be left to the judge to determine in accordance with s 10(2).”

23.In the present case, the Arbitrator was not satisfied that, at the time of the injury, Mrs Rivera was engaged in a journey between her place of abode in Waterloo and her place of employment in Enmore. The Arbitrator found the probable time of the accident to be 8.20 am, approximately half an hour before Mrs Rivera arrived at the Royal South Sydney Hospital for treatment of her injury, having been driven there by her husband. The Arbitrator discussed the time at which Mrs Rivera was due to start work on that day, about which there was contradictory evidence, and, although he does not make a specific finding, it is clear from his discussion that he considered it probable that she was due to start work at 12 noon. He said:

“42. The Applicant states that she would not have taken her child to child-care early in the morning, if she was due to commence work at midday. There is however a variety of other factors, as noted above, which indicate that she was scheduled to commence work at that time. The Applicant may have had other responsibilities which necessitated leaving her child at child-care at 8.30 am on 25 February 1991, before she was due to embark of her journey to work later that morning.”

“43. The Applicant’s accounts of the circumstances of injury are fraught with anomalies, yet all have been presented in a manner so as to bring the Applicant within the provisions of a journey claim, whether the starting time in a particular version is asserted to be midday or alternatively several hours earlier. Circumspection in assessment of the Applicant’s case is clearly called for.”

24.The Arbitrator concluded:

“46. If the Applicant was intending to drop her son off at the child-care centre at approximately 8.20 am, it is absolutely improbable that she would then have proceeded on her way to work. It does not take 3 hours to travel by bus from Waterloo to Enmore. The Applicant’s journey would in my view have commenced approximately ninety minutes to two hours after the time she happened to injure herself.

47. I therefore find that the Applicant was not on a journey to which the Workers Compensation Act applied, when she injured herself on 25 February 1991.”

25.Mrs Rivera’s solicitors submit the Arbitrator’s findings are ambiguous, particularly in relation to the evidence from the Royal South Sydney Hospital, where Mrs Rivera was treated, and in relation to the evidence of Patricia Barbieri, the Director of the Enmore childcare centre where Mrs Rivera worked. I note the Hospital’s records were discussed by the Arbitrator at paragraphs 12 to 16 of his decision. He concluded at paragraph 16 that the record of a time of arrival at the Hospital of 8.50 am was the more reliable one.

26.With regard to Ms Berbieri, there was no evidence from her before the Arbitrator – merely reference to her in the statement provided by Mrs Rivera’s husband, Hugo Rivera, dated 9 June 2005, and in the statement by Patricia Alvarado, an Administration Assistant at the Enmore childcare centre where Mrs Rivera worked, dated 16 May 2006. In both cases, this evidence related to Mr Rivera’s telephone call to Ms Berbieri on the morning of 25 February 1991 to inform her that his wife had been injured and would not be able to come to work that day. The evidence as to Mrs Rivera being due to start work at 12 noon on 25 February 1991 was contained in a Memorandum dated 3 April 1991 from Paul McMahon, Programme Manager for KU.  In a statement by Mrs Rivera, dated 24 March 1991, to the investigator employed by EMI to prepare a report on Mrs Rivera’s claim, Mrs Rivera referred to Ms Berbieri requesting that she start work at 12 noon on 25 February 1991 rather than her usual 8.30 am starting time.

27.Having reviewed the relevant evidence and the Arbitrator’s discussion of that evidence in his Statement of Reasons, I am not satisfied that he made any error of fact or law in his consideration of the evidence or his findings. The onus was on Mrs Rivera to establish that the journey in respect of which her claim was made was one to which section 10 applied. She failed to discharge that onus. In my view, there was sufficient evidence before the Arbitrator to support his conclusion that, at the time of the injury, Mrs Rivera was not on a journey entitling her to claim compensation for the injury pursuant to section 10. I therefore reject this ground of appeal.

28.With regard to Mrs Rivera’s solicitors’ second ground of appeal, that the Arbitrator failed to consider the application of section 10(2) of the 1987 Act, as EMI points out in its submissions, this is only relevant where an interruption or deviation occurred in the course of a journey between the worker’s place of abode and place of employment. Since the Arbitrator was not satisfied that Mrs Rivera was engaged in such a journey, no issue in relation to an interruption or deviation arises. Thus, I also reject this ground of appeal.

29.In conclusion, I am not satisfied that the Arbitrator’s decision is affected by any legal, factual or discretionary error and the decision must, therefore, be confirmed.

DECISION

30.The decision of the Arbitrator dated 24 July 2007 is confirmed.

COSTS

31.There is no order as to the costs of this appeal.

Robin Handley

Acting Deputy President       

30 October 2007

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE