Salame v QF Cabin Crew Australia Pty Limited
[2021] NSWPIC 4
•4 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Salame v QF Cabin Crew Australia Pty Limited [2021] NSWPIC 4 |
| APPLICANT: | Tina Salame |
| RESPONDENT: | QF Cabin Crew Australia Pty Limited |
| MEMBER: | Catherine McDonald |
| DATE OF DECISION: | 4 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- substantial contributing factor; flight attendant suffered a broken tooth eating on a long haul flight; section 78 notice prepared on a narrow basis and no medical evidence sought until claim listed for hearing; Badawi v Nexon Asia Pacific Pty Limited; nature of the worker’s employment meant that she would be expected to eat during a long haul flight; Held- employment was a substantial contributing factor to the injury; award for the applicant. |
| DETERMINATIONS MADE: | 1. I find that the applicant suffered an injury to tooth number 22 on 16 July 2019 to which her employment was a substantial contributing factor. 2. Pursuant to s 60 of the Workers Compensation Act 1987, the respondent is to pay the cost of the treatment proposed by Dr Alam. |
STATEMENT OF REASONS
BACKGROUND
Tina Salame is employed by QF Cabin Crew Australia Pty Limited (QCCA) as a long haul flight attendant. On 16 July 2019 she was working on a flight from Sydney to Singapore. During the flight she bit into a piece of sourdough bread and felt one of her upper front teeth dislodge.
Ms Salame claims the cost of dental treatment including an implant.
QCCA disputes that employment was a substantial contributing factor to Ms Salame’s injury and that the proposed treatment is not reasonably necessary within the meaning of s 60 of the Workers Compensation Act 1987 (the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
At a telephone conference on 6 January 2021, I declined leave to QCCA to issue a direction for production on Dr E Alam of Painfree Dentistry. My reasons were set out in a document issued on that day and are repeated here:
“a) A s 78 notice declining liability was issued on 20 December 2019 declining liability for the dental treatment sought. The respondent’s insurer was required to obtain all relevant information to make a soundly based decision before issuing that notice.
b) There is no evidence that documents from Ms Salame’s treating dentist had been sought before the s 78 notice was issued.
c) One of the reasons given for declining liability was that the tooth which requires treatment (#22) had previously been the subject of root canal therapy.
d) Dr Alam’s notes from the date of the injury were provided by Ms Salame’s solicitor with an application for review of the s 78 notice.
e) The decision was reviewed and a notice issued on 2 November 2020, relying on substantially the same reason – that there had been previous dental work on the same tooth, including fillings on 16 December 2015 and 27 April 2016.
f) Because the documents were not sought before issuing those notices, rule 13.4(2) precludes the issuing of a direction for production once proceedings were filed.
g) Dr Alam’s notes are in the Application to Resolve a Dispute and confirm that tooth #22 was the subject of previous root canal therapy and fillings.
h) That suggests that Ms Salame had previous significant problems with that tooth.
i) There is no evidence that any steps had been taken to qualify an independent medical expert even though the insurer was aware of that information when the notice was issued. If a report was necessary to respond to the claim, the relevant claims handling guidelines required the insurer to request it before issuing the s 78 notice.
j) A direction was sought on the basis that the respondent did not know until the Application to Resolve a Dispute was filed that Ms Salame had consulted Dr Alam’s practice for 10 years. I was told that a request for documents was made on 18 December 2020 but that letter does not appear in the Reply. The respondent proposed to seek an independent medical opinion on production of the documents. It is unlikely that a report obtained at that stage of the proceedings would be admissible.
k) In those circumstances it is not appropriate to grant leave to issue a direction for production.”
The matter was listed for conciliation conference and arbitration hearing by telephone on 9 February 2021 when Mr McManamey of counsel appeared for Ms Salame and Mr Robison of counsel appeared for QCCA.
At the arbitration hearing, QCCA sought to rely on a report from Dr P Nichols, dental surgeon, dated 14 January 2021 which was attached to its Application to Admit Late Documents dated 2 February 2021. I declined leave to rely on that report and indicated that my reasons would appear in this decision. They are set out below. An application to rely on s 4 of the 1987 Act was dealt with at the hearing and my reasons for declining that application were provided at the hearing and are repeated below.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Dr Nichols’ report
On 2 February 2021 QCCA served an Application to Admit Late Documents attaching a report of Dr P Nichols dated 14 February 2021.
The reasons in support of the Application were repetitive and general and no explanation for the delay in providing the document were provided. The reasons proffered were:
“1. The respondent complied with rule 10.3(3) of the Workers Compensation Commission Rules 2011 and this Application was lodged and served within 5 working days prior to the arbitration hearing.
2. The respondent relies upon rule 10.3(4) of the Workers Compensation Commission Rules 2011 which provides the Commission may, in the interests of justice, allow a respondent to introduce evidence that it would otherwise be prevented from introducing because of the operation of subrule (2).
3. A failure to allow the respondent to rely upon these documents would result in an injustice and serious prejudice to the respondent.
4. The above documentation was previously provided to the applicant on 2 February 2021.
5 . The applicant would be under no prejudice should the above documentation be accepted for filing outside of the time prescribed by rule 10.4(1) of the Workers Compensation Commission Rules 2011.
6. The failure to admit these documents into evidence would be inconsistent with the objective of the Workers Compensation Commission as set out in s 367 of the Workplace Injury Management and Workers Compensation Act 1998.
7. The failure to admit these documents into evidence would be inconsistent with s 354 of the Workplace Injury Management and Workers Compensation Act 1998 in that the proceedings before the Commission are to be conducted with as little formality and technicality as proper consideration of the matter permits.
8 The admission of these documents into evidence would not in any way prejudice the applicant, nor would it affect or delay the outcome of the proceedings currently on foot.”
The reasons, as in most matters of this kind, are formulaic and likely to be from a standard precedent. Apart from noting that the report had been served on Ms Salame’s lawyers on the same day, the purported reasons provide no assistance for determining the application. The suggestion that the report would not prejudice Ms Salame when it was served so close to the hearing is nonsensical.
The report was prepared on the basis of a file review, Dr Nichols said he needed more information to provide a conclusive report and suggested some alternative treatment.
In support of the application to rely on the report, Mr Robison said it should be admitted because there was no other material to contradict Ms Salame’s case. While not seeking to cavil with the ruling I made about the issue of a direction for production, Mr Robison said that reason for obtaining the report was that I had declined the application for a direction. It made sense to delay commissioning the report until after clinical notes had been obtained because the report would then carry greater weight. The fact that some alternative treatment was suggested was an evidentiary matter and was not determinative of an application to admit the document. Mr Robison said that any prejudice could be occurred by allowing Ms Salame to obtain a report in reply and concluding the hearing by ordering written submissions.
Mr Robison said that the insurer could deny the claim on the basis of the material it had and should be at liberty to develop the case, as the worker can, once the claim has been made. He said that the interests of justice favoured the admission of the document.
Mr McManamey said that the claim was denied in December 2019 which showed that the insurer felt fully capable of responding to it then. The only issue raised was s 9A. The insurer was provided with a second opportunity to consider the claim in October 2020 when Ms Salame sought a review of its decision and provided all of the material which is attached to the Application to Resolve a Dispute (ARD). The insurer considered itself capable of making a decision at that time.
Mr McManamey pointed out that QCCA had not indicated that it would seek a report from an independent medical examiner if its application to issue a direction to Dr Alam was declined. He said that the report raised a number of new issues, such as an issue about other treatment that had not been raised in the dispute notices and no application had been made under s 298A(4) to rely on those issues. Ultimately, Mr McManamey said, there was no explanation why the insurer had not sought to obtain a report at the appropriate time. He said that the report contained a misunderstanding of the law with respect to s 60 and added nothing in respect of the s 9A issue. If the report had any weight, it was prejudicial to Ms Salame.
I declined leave to rely on the report and told the parties that I would provide the reasons discussed during conciliation in my decision.
In essence, the reasons are the same as those given for declining leave to issue a direction for production. The intention to seek a medical report was not mentioned at the telephone conference.
The insurer was required to properly consider the claim before issuing a dispute notice because it would be limited to the matters disputed at any hearing. When it issued the dispute notice dated 20 December 2019 the insurer was aware that Ms Salame had previously had root canal therapy on tooth 22. It did not seek to obtain additional records from Dr Alam nor did it ask Ms Salame to attend a medical examination. It did not require those records to respond to Ms Salame’s application for review when it was provided with all of the material attached to the ARD. Apart from all of those issues, the report suggests that there is alternative treatment which Ms Salame has not had the opportunity to consider.
Section 4
The Reply form included the following material under the hearing “Any other issues”:
“The respondent relies on the notice issued on 20 December 2019 and confirms the following issues in dispute. To the extent that the following issues are not adequately canvassed in the notice, the respondent seeks leave to raise the following issues in dispute:
Injury
1 The applicant did not sustain an injury at all or as alleged; section 4 of the Workers Compensation Act 1987 (NSW).
2 Employment was not the main contributing factor to the contraction, aggravation, acceleration, exacerbation or deterioration of a disease as required by section 4(b) of the Workers Compensation Act 1987 (NSW), alternatively, employment was not a substantial contributing factor to the injury sustained by the applicant, as required by section 9A of the Workers Compensation Act 1987 (NSW).Section 60 expenses
3 Section 60 expenses are not reasonably necessary or do not relate to the injury relied on.”
QCCA’s insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 20 December 2019. It recited the brief circumstances of the injury and said:
“We have also received information indicating your tooth #22, has had previous RCT (root canal therapy) which is indicating that the tooth was not healthy.
The medical information on file confirms the tooth already had previous dental work and we note eating bread is not part of your work duties. We also note pursuant to section 9A(2) of the 1987 Act, this injury could have happened at any time when eating any food due to the poor health of the tooth and previous dental work.
We further note section 9A(3) of the 1987, albeit the injury occurred at work we do not deem that this is a work related injury, due to this being able to have occurred at any stage given the health of your #22 tooth.”
Ms Salame requested a review which was completed on 2 November 2020 and iCare maintained the insurer’s decision. The material provided – including Ms Salame’s statement dated 2 September 2020 – was considered. The notice said:
“The evidence supports previous dental work on your tooth in question. Further, your evidence states you were hungry and you ate a piece of bread and you suffered injury to your tooth. We note eating bread is not part of your work duties.
The available evidence supports the injury occurred at work, however, we do not deem that this is a work related injury as it did not occur whilst performing your duties pursuant to section 9A(3) of the 1987 Act. Further, we note pursuant to section 9A(2) of the 1987 Act this injury could have happened at any time or at the same stage of your life, if you had not been at work or had not worked in that employment, when eating food due to previous dental work.
On this basis, your employment was not a substantial contributing factor to your injury. It follows that you do not have an entitlement to medical expenses.
The decision of the insurer dated 20/12/2019 is therefore maintained pursuant to sections 9A, 33, 59 and 60 of the 1987 Act.”
The relevance of ss 33 and 59 is not explained and there is no suggestion that the treatment does not fall within s 59.
Neither dispute notice suggested that further notes or a medical report were required.
It is clear that the Reply sought to introduce disputes which are not set out in the s 78 notice. The notice did not rely on s 4 with respect to the occurrence of the injury and it merely denied that s 60 expenses were payable. Because of the ruling I made about Dr Nichols’ report, the argument under s 60 was not pursued.
Mr Robison also sought leave to rely on s 4 of the 1987 Act to argue that Ms Salame did not suffer an injury arising out of or in the course of her employment. He said that it was relevant to the underlying factual issue and that no additional evidence was required. He said that it would be of no assistance to a worker to provide a list of sections and that the issue was raised by the statement “we note that eating bread was not part of your duties.”
Mr McManamey noted that s 79(3) of the 1998 Act required that the s 78 notice must identify any provision of the legislation on which the insurer relies to deny liability. Section 4 was not identified. He noted that there was a concession in the notice that the injury had occurred at work. He also noted that this was the second set of proceedings filed and that the issue had never been raised and objected to reliance on it.
I declined leave to raise a dispute with respect to s 4 for the same reasons that I declined to grant leave to QCCA to issue a direction for production and to rely on Dr Nichols’s report. I told the parties that I would confirm my reasons in this decision and add anything else that was required.
The application was made on the basis that the dispute was implicit in the s 78 notice rather than as a properly argued and supported application under s 289A of the 1998 Act.
The issue was not raised in the s 78 notice. QCCA was required to properly consider the claim before issuing a notice under s 78. It is clear on the facts that Ms Salame was in the course of her employment when the injury was suffered. The following passage from Mateus v Zodune Pty Limited t/as Tempo Cleaning Services[1] is apt:
“I do not accept that the section 74 notice put injury in issue. The notice stated that the issue relied on by the insurer was whether Mr Mateus’ employment was a substantial contributing factor to the injury. That is a separate and distinct issue from whether the injury occurred in the course of or arising out of the relevant employment. In MacMahon v Lagana & Anor[2004] NSWCA 164; (2007) 4 DDCR 348 Hodgson JA held at [33] that ‘it is clear that the question of substantial contributing factor is a distinct and additional question to that of the course of employment.’ Therefore, an insurer who disputes liability on the basis that employment was not a substantial contributing factor to the injury does not put in issue the occurrence of the injury. By relying only on section 9A in the notice an insurer is effectively conceding that an injury occurred and merely denying that employment was a substantial contributing factor to that injury.
…… A section 74 notice must state in plain language, in the body of the document, the reason the insurer disputes liability and the issues relevant to that decision.”[1] [2007] NSWWCCPD 227 at [44]-[45].
It is the responsibility of the insurer to make a soundly based decision and to raise all relevant issues in the dispute notice.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) ARD and supporting documents;
(b) Reply, and
(c) QCCA’s.
There was no oral evidence.
Ms Salame said in her statement that on 16 July 2019 she was rostered to work on an A380 aircraft operating from Sydney to Singapore. She was required to sign on at 2.30 pm. The aircraft left Sydney at about 4.00pm. Scheduled operating time was seven to eight hours and she was rostered to work in the forward economy galley.
During the flight, crews are provided with a seventy-five minute rest break. A crew member can rest in a crew bunk and consume a crew meal. Ms Salame was rostered to have her break about four hours after the flight left Sydney, after completion of passenger meal service. It is up to the individual crew member as to when and if they eat a crew meal. Ms Salame’s preference is to rest first to maximise the benefit of rest time and to eat when she returns to her galley station.
Ms Salame quoted from the relevant cabin crew operations manual and said that cabin crew are entitled to consume passenger food and beverages but not before completion of the passenger meal service. She described why she chose not to eat one of the crew meals.
On 16 July 2019, Ms Salame returned to her forward economy class galley station and saw that there was no food left. She went to the first class galley and her colleague was only able to provide a piece of sourdough bread which had been heated in the oven. Ms Salame took a bite of the bread and felt one of her upper teeth (number 22 dislodge). She examined the tooth and pushed it back into place. She reported the incident to the Customer Service Supervisor who advised her to contact Medaire on her arrival in Singapore. It was suggested that she attend a hospital the following day but she said that, because the tooth had not broken off, she was fit to operate her rostered return flight.
Ms Salame said that she had undergone root canal therapy on tooth 22 about 20 years previously and before she migrated to Australia but had not suffered any problems since.
Ms Salame saw her usual dentist Dr J Tabba who referred her to Dr E Alam in the same practice. Dr Alam recommended that the tooth be extracted and implant surgery undertaken.
On 29 December 2019, QCCA’s insurer denied liability.
As a temporary measure – and because she cannot work as a flight attendant with a front tooth missing – Ms Salame had the tooth bonded to the next tooth. The bond has failed on multiple occasions and been fixed by Dr Taba.
Dr Alam provided a report which is undated, though the index to the ARD says it is dated 24 July 2019, the same date as the treatment plan. He said that the tooth – an incisor – will need to be extracted atraumatically, noting the thinness of the bone in the area. He said that socket preservation is required to minimise bone loss and loss to the soft tissue of the gum. A second procedure of bone augmentation may be required and the implant may be placed on the day or six months later, allowing for osseointegration, before placing the abutment and then the crown. He noted that a highly aesthetic result is important for Ms Salame’s employment.
The notes from Dr Alam and Dr Tabba begin on 16 December 2015 and show that an old filling was removed from tooth 22, among others and restoration work undertaken. Some further work was done on 27 April 2016. The notes for 18 July 2019 note the previous root canal therapy at tooth 22. The notes show multiple attempts to bond the tooth to the next one.
SUBMISSIONS
Section 9A of the 1987 Act relevantly provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease 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 the 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 workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.”
Mr McManamey said that the sole issue was the application of s 9A. Ms Salame took a bite of bread and her tooth dislodged. She therefore suffered a frank injury and no other cause for that injury has been identified.
The notes from Dr Alam show that some treatment had been undertaken but that the fracture was a result of biting into bread. The enquiry, according to the Court of Appeal decision in Badawi v Nexon Asia Pacific Pty Limited[2] (Badawi) required that the work provide an actual contribution to the injury. Mr McManamey said that the s 78 notice raised only one issue, based on only one of the matters in s 9A – that because Ms Salame’s tooth was weakened, the facture could have occurred anywhere. He referred to the decision in State Transit Authority of New South Wales v Chemler[3] and the principle that employers take their employees as they find them.
[2] [2009] NSWCA 324.
[3] [2007] NSWCA 249.
Mr McManamey said that the s 78 notice treated one item in the list of matters in s 9A(2) as determinative. It was clear that the injury had occurred during work. Ms Salame’s primary task was the service of passengers but that took place over a lengthy period so that meal breaks and food were provided. Taking sustenance during a long flight was integral to her duties. There is no medical opinion that it would have happened at any time and the reason it happened at this time was that she was taking sustenance in the course of her duties. He said the s 78 notice was misconceived and did not rely on anything other than s 9A(2)(d).
Mr McManamey said that Dr Alam had proposed treatment, noting that aesthetics were relevant to Ms Salame’s occupation. The reasonable necessity of the treatment was not in issue.
Mr Robison said that Ms Salame’s prior dental treatment was relevant to the application of s 9A. He said that s 9A overlaps with s 4 and not all of s 9A(2) was always relevant. He said that Mr McManamey’s reading of the section was unduly restrictive and that Ms Salame’s dental health was most relevant. He took me to Basten JA’s statement in Badawi at [128]:
“Thus, … , if the conduct out of which the injury arose occurred in the course of employment and was the effective cause of the injury (there being no pre-existing condition or involvement of another person) the only conclusion reasonably open is that the employment was a substantial contributing factor to the injury.”
Mr Robison said that the argument was an analogue of the “eggshell skull” principle but not a complete analogue because s 9A modifies causation. It therefore requires consideration of Ms Salame’s state of health. That does not necessarily mean that any pre-existing condition will preclude compensation but Ms Salame had had “years and years” of treatment. On her own evidence, the condition was pre-existing and when that issue was given its proper weight, her application must fail.
Mr McManamey noted in reply that Ms Salame had had no problems with her tooth for some years and that there was no evidence that her tooth was about to fail.
FINDINGS AND REASONS
Ms Salame suffered an injury in the course of her employment. It was not suggested that the whole of the flight was not the course of her employment. However the test of substantial contributing factor must be considered separately. The test applies in the same way to an injury arising in the course of employment as one arising out of employment.
It was not argued that Ms Salame suffered an injury in an interval between periods of employment. The focus in the s 78 notice was that eating bread was not part of Ms Salame’s duties, relying on sub-section 2(d).
In Badawi, Allsop P, Beazley and McColl JJA noted that the test arising out of employment involves a causative element. So too does whether employment was a substantial contributing factor to the injury.[4] “Substantial” is an evaluative concept[5] meaning a factor which is real and of substance.
[4] At [73]-[80].
[5] At [82].
In determining if employment was a substantial contributing factor to the injury, the Commission is[6]:
“required to take into account the matters specified in s 9A(2). Those factors are matters that the legislature has determined are relevant to the question whether the employment concerned is a substantial contributing factor to the injury. To the extent that the matters specified in paras (a)-(f) are relevant to the case under decision, they must be taken into account and applied according to their terms. A decision maker is not confined to the matters specified in s 9A(2) and may take into account other factors that are relevant to the determination of the question in issue: viz, whether the employment concerned was substantial contributing factor to the injury.”
[6] At [89].
I am not required to approach the task with sub-section 2(d) as the starting point.
Section 9A(2)(b) “directs attention not to what the employee was doing when the injury occurred, but to ‘the nature of the work performed and the particular tasks of that work’, that is, of the employment concerned.”[7]
[7] At [98].
The focus in the s 78 notice on whether eating bread was part of Ms Salame’s employment is similar to the error that the Court of Appeal highlighted in the case of Ms Badawi who was injured whilst skiing at a client’s resort. Allsop P, Beazley and McColl JJA said:
“We have also reached the conclusion that even leaving aside s 9A(2)(b), the President erred in the manner in which he undertook the statutory task required under s 9A(1). Section 9A(1) requires a determination as to whether the employment is a substantial contributing factor to the injury. The determination so called for is not performed in a case such as this by looking at the recreational activity and then seeing whether any aspect of the employment concerned might have strengthened the linkage with that employment. Rather, a decision maker, in determining under s 9A whether the employment concerned is a substantial contributing factor, is required to consider the employment concerned and the circumstances surrounding the occurrence of the injury, including activities that might be undertaken during an interval in the employment. Those circumstances may be fully encompassed by the factors specified in s 9A(2), or there may be other factors that are relevant to take into account.”
At the exact time of the injury, Ms Salame was in the First Class galley of the plane eating a piece of bread. She was not actually serving passengers however she is employed as a long haul flight attendant. The flight to Singapore is about eight hours duration and it is likely that she would be required to eat during that period. Crew meals are provided but the Operations Manual permits the consumption of other food so long as passenger service is completed. It is therefore no answer to say, as the s 78 notice did, that eating bread is not part of Ms Salame’s work duties. The injury occurred when she was eating food that was available to her while she was in the course of her employment.
In the passage to which Mr Robison referred, Basten JA said:
“Thus, subject to one qualification, if the conduct out of which the injury arose occurred in the course of employment and was the effective cause of the injury (there being no pre-existing condition or involvement of another person) the only conclusion reasonably open is that the employment was a substantial contributing factor to the injury.
The qualification arises with respect to activities occurring during an interval or interlude within a period of employment…”[8]
[8] At [128]-[129].
That passage cannot be interpreted as saying that any pre-existing condition will preclude employment being a substantial contributing factor to the injury. His Honour was not specifically considering the meaning of sub-s (2)(d). His Honour went on to say:
“Subsection (2) is less clear: some of the ‘examples’ suggest it may be appropriate to have regard to the ‘nature of the work’ and to distinguish some ‘particular tasks’ from others, although in what way and for what purpose is not self-evident. Indeed, this provision does not purport to mandate what matters are to be taken into account, but merely identifies a number of ‘examples of matters to be taken into account’. Because the wider class is not specified, it seems unlikely that these examples were intended to be mandatory. Nor will they always be relevant. What are the mandatory considerations, disregard of which will constitute error of law, must be inferred from the subject matter, scope and purpose of the provision, including by reference to s 9A(2). More importantly, those matters should not be read as excluding from the concept of ‘the employment concerned’ all activities which are not within the inherent features or essential incidents of the employment. The apparent purpose in including s 9A in the Workers Compensation Act was to impose a causal connection of a substantial kind between the employment and the injury, not to restrict in some way the concept of ‘the employment’.
Subsection (2)(d) requires a different focus than the contention in the s 78 notice that eating bread was not part of Ms Salame’s work duties. It provides:
“(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,”
In this case, that is essentially a medical question. It does not necessarily follow from the fact that Ms Salame had previous dental work on the relevant tooth that it was bound to fail.
Because of the way QCCA chose to prepare the matter, the only evidence about Ms Salame’s tooth is that she had had some previous dental work on it, including root canal therapy before she migrated to Australia in 2006. She had a filling replaced in 2016, three years before the injury. There is no evidence to support the contention that Ms Salame’s tooth was prone to fail.
Ms Salame’s tooth failed when she was eating on an eight hour flight from Sydney to Singapore. Because of the nature of her work, it would be anticipated that she would be required to eat during the flight as would any other worker working a full day shift.
For those reasons, I am satisfied that Ms Salame suffered an injury on 16 July 2019 to which her employment was a substantial contributing factor.
There is no dispute on the evidence admitted in the proceedings that the treatment recommended by Dr Alam is reasonably necessary medical treatment as a result of the injury. I therefore order QCCA to pay the costs of the medical treatment proposed by Dr Alam.
Catherine McDonald
MEMBER
4 March 2021
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