Sutherland and Comcare (Compensation)

Case [2017] AATA 2596

Sutherland and Comcare (Compensation) [2017] AATA 2596 (11 December 2017)

Division:GENERAL DIVISION

File Number(s):2016/4761      

Re:Susan Sutherland  

APPLICANT

ComcareAnd  

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

11 December 2017Date:  

CanberraPlace:  

The Tribunal sets aside the decision under review and in substitution decides that Ms Sutherland is entitled to compensation under section 14 of the SRC Act in respect of the injuries that arose in the course of her employment on 15 January 2013.

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Senior Member A Nikolic AM CSC


CATCHWORDS

WORKERS COMPENSATION – whether applicant entitled to compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether applicant an employee at time of injury – whether injury arose out of, or in the course of, employment – decision under review set aside

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Canute v Comcare (2006) 226 CLR 535

Stellard Pty Ltd & Anor v North Queensland Fuel Pty Ltd [2015] QSC 119
Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110
Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd [2015] WASCA 21
Shortland v The Smiths Snackfood Co Ltd [2010] FWAFB 5709
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34
Re Beverley June Boyd v Australian Industry Development Corporation [1990] FCA 525
National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98
Rus and Comcare [2016] AATA 18

Rus v Comcare [2017] FCA 239

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

11 December 2017

INTRODUCTION

  1. On 15 January 2013 Ms Susan Sutherland sustained injuries at the University of Canberra (UC), after falling down a set of concrete steps outside the refectory building.[1] She lodged a claim for compensation on 30 January 2013, contending that her injuries arose out of or in the course of her employment. On 20 February 2013 Comcare accepted liability for ‘fracture – fibula (right), sprain of shoulder and upper arm (bilateral), and contusion of knee and lower leg (bilateral)’[2] under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).

    [1] T-documents numbering 143 pages and hereafter referred to as Exhibit R1, p.16.

    [2] Exhibit R1, pp.25-28.

  2. On 12 July 2016 Comcare conducted a reconsideration of own motion under section 62(1) of the SRC Act, revoking the earlier acceptance of liability.[3] Ms Sutherland has applied to the Tribunal for a review of that decision.

    [3] Exhibit R1, pp.139-143.

  3. The hearing was conducted on 27 November 2017. Ms Sutherland was represented by Mr Jason Moffett of counsel, instructed by Maurice Blackburn Lawyers. Comcare was represented by Mr Andrew Berger of counsel.

  4. For the reasons that follow, the decision under review is set aside and in substitution it is decided that Ms Sutherland is entitled to compensation under section 14 of the SRC Act in respect of the injuries that arose in the course of…

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AGLC
Sutherland and Comcare (Compensation) [2017] AATA 2596
Case
[2017] AATA 2596
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Sutherland against a decision by Comcare to revoke acceptance of liability for injuries sustained on 15 January 2013. Ms Sutherland had been engaged by the University of Canberra (UC) under sessional contracts of employment since February 2010, with a contract in place covering the period of her injury. On the day in question, she attended UC for two meetings related to her academic duties, one of which was with an HR consultant regarding employment matters. While on the premises, she fell and sustained injuries. Comcare's delegate had been satisfied that Ms Sutherland had a contract of employment but was not satisfied that she was required to be at work on that day, leading to the revocation of liability.

The Administrative Appeals Tribunal was required to determine whether Ms Sutherland was an employee of UC at the time of her injury and, if so, whether her injuries arose out of, or in the course of, her employment. The Tribunal considered the nature of Ms Sutherland's engagement with UC, noting that while her contractual hours for tutoring had been completed, it was common practice for sessional contracts to extend beyond the semester for administrative purposes. The Tribunal also examined the purpose of Ms Sutherland's attendance at UC on the day of the incident, specifically the meetings she had scheduled, and the employer's own statements regarding her employment status.

The Tribunal found that Ms Sutherland was an employee of UC on 15 January 2013. It reasoned that her attendance at UC for the scheduled meetings, including the discussion with an HR consultant regarding employment matters, was consistent with her role and responsibilities as a sessional academic. The Tribunal concluded that her injuries occurred at her place of work during an ordinary recess and therefore arose in the course of her employment. Consequently, the Tribunal set aside Comcare's decision and substituted it with a determination that Ms Sutherland was entitled to compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the injuries sustained.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, the decision under review is set aside and in substitution it is decided that Ms Sutherland is entitled to compensation under section 14 of the SRC Act in respect of the injuries that arose in the course of her employment on 15 January 2013. BACKGROUND Since February 2010 Ms Sutherland has regularly provided academic services to UC under sessional contracts of employment.[4] She has concurrently been a PhD student at UC since 2012. On the date of her accident (15 January 2013), a sessional contract was in place encompassing the period from 6 August 2012 to 27 February 2013.[5] Under this contract, Ms Sutherland was required to provide 59 hours of tutoring, marking and other academic services during the final semester of 2012, for a unit titled Database Design. The hours of work specified in this contract had been completed by December 2012, but it was a common practice at UC that sessional contract dates were extended beyond the end of a semester to facilitate network access for deferred exams and marking.[6] [4] Exhibit R1, p.130.[5] Exhibit R1, pp.83-84.[6] Exhibit R1, p.78. It is not in dispute that Ms Sutherland attended UC on 15 January 2013 for two meetings: (a)the first was with Ms Carol Drew at 1pm to discuss a unit titled Professional Practice in IT (PPIT);[7] and(b)the second was with Ms Annalisa Gherlinzoni at 2.30pm, to discuss non-payment of fees for a lecture Ms Sutherland had delivered in second semester 2012.[8] [7] Statement of Ms Susan Sutherland dated 23 November 2016, paragraph 6. This is confirmed by Ms Drew in the responses she provides to a UC Case Manager on 18 November 2015 (Exhibit R1, pp.109-110).[8] Statement of Ms Susan Sutherland dated 23 November 2016, paragraph 5; Exhibit R1, p.102. Ms Sutherland had a room at UC where both of the meetings were scheduled to be held. Following the meeting with Ms Drew, Ms Sutherland went to the UC Refectory to buy lunch. As she departed the Refectory at approximately 2.15pm, she fell while descending concrete steps, sustaining the injuries that are the subject of her claim. In the employer section of the Claim for Workers’ Compensation dated 5 February 2013, UC’s Health and Safety Manager stated that, on the date of her injuries, Ms Sutherland was working a weekly average of 16 hours and 17 minutes, receiving average net weekly earnings of $428.65.[9] In response to Question 28: ‘Is the person claiming compensation still employed…,’ the UC Health and Safety Manager marked the ‘Yes’ box.[10][9] Exhibit R1, pp.21-22.[10] Exhibit R1, p.23. On 14 February 2013, Ms Therese Engelbrecht, a UC Health and Safety Case Manager informed Comcare that Ms Sutherland: ‘…was not working at the University at the time of the accident but was attending an appointment with one of our HR consultants on an employment matter and had intention to sign a contract for further sessional tutoring in Semester 1, 2013…The claim form new weekly earnings may need to be reviewed as Ms Sutherland has been hired as a sessional tutor and does not work in non teaching times…We have had some confusion as Ms Sutherland is also a PhD student and has been attending the University to study. I will supply further documentation of actual hours of work when this is available…’[11][11] Exhibit R1, p.24.

Evidence

Evidence Before The Court

On 12 July 2016 a delegate of Comcare wrote to Ms Sutherland advising her of the decision to revoke the earlier acceptance of liability for her injuries.[20] The delegate’s reasons noted that the earlier decision-maker ‘did not have a full history of the facts’ associated with Ms Sutherland’s attendance at UC on 15 January 2013. Although the delegate was satisfied Ms Sutherland ‘had a contract’ indicating she was employed by UC on the date of her fall, the delegate was not satisfied she was ‘required to be at work’ on that day and considered her attendance at UC could have been her ‘preference.’ The delegate was therefore not satisfied that Ms Sutherland’s injuries arose out of or in the course of her employment, as they ‘did not occur in the performance of [her] duties.’ [20] Exhibit R1, pp.139-143.MEDICAL EVIDENCE I note the medical evidence in this matter, including the two specialist reports of Consultant Occupational Physician Dr Sandra McBurnie and Consultant Orthopaedic Surgeon Dr James Rohrsheim. The nature of Ms Sutherland’s injuries is not contested in this matter, but I include the specialist reports for completeness, in that they provide an insight into the extent of and enduring nature of Ms Sutherland’s injuries up to June 2015. Key aspects of these reports follows:(a) Ms Sutherland was examined by Consultant Occupational Physician Dr Sandra McBurnie on 4 February 2014. Dr McBurnie’s report[21] noted Ms Sutherland’s fracture had healed and her other injuries had resolved to a large extent. She stated Ms Sutherland appeared motivated to return to her usual work and did not require reduced working hours. She recommended hydrotherapy and/or physiotherapy for a short period of time to increase the strength in Ms Sutherland’s right leg and to improve her confidence in right leg function. The only provision noted by Dr McBurnie was the requirement for Ms Sutherland to be able to sit and stand intermittently, and to be provided a chair when lecturing.(b) Ms Sutherland was examined by Dr James Rohrsheim, Consultant Orthopaedic Surgeon on 5 June 2015 at the request of Comcare. Dr Rohrsheim’s report[22] states in part: ‘Ms Sutherland currently suffers from right posterior tibialis tendon tendinopathy as well as disruption to her medial deltoid ligament complex. She has tightness and stiffness in her left shoulder girdle. The right ankle pain stems from the fall on 15 January 2013. The left shoulder pain has developed subsequent to this fall but no specific date is able to be substantiated. With respect to her right ankle, she is incredibly tender over the medial malleolus. She is also tender over the posterior tibialis tendon. With respect to her left shoulder, she has an inability to forward flex the shoulder beyond 90º. She has periscapular and trapezoid muscle tightness.Ms Sutherland’s right ankle has improved, albeit slowly, over the last two years. It is not yet healed but she is much more functional now……In my opinion the current condition is not related to anything bar her employment. There are no factors unrelated to work. There were no pre-existing conditions……I suggest physiotherapy for range of motion exercises. These sessions should occur either weekly or fortnightly…I would recommend at least eight sessions. These should commence as soon as possible. On completion of the eight sessions she could continue with a self-guided program. [21] Exhibit R1, pp.59-65.[22] Exhibit R1, pp.66-74.CONTENTIONS OF THE PARTIES

Decision

Reasons for decision

Ms Sutherland was a UC employee on 15 January 2013. Prior to leaving her office for lunch on that day, she was doing precisely what her employer had requested she do – facilitate the transition of and prepare to deliver PPIT within a relatively constrained timeframe. Her injuries occurred at her place of work during an ordinary recess in her employment and arose in the course of her employment at UC.DECISION It therefore follows that the Tribunal sets aside the decision under review and in substitution decides that Ms Sutherland is entitled to compensation under section 14 of the SRC Act in respect of the injuries that arose in the course of her employment on 15 January 2013.

Ratio Decidendi

Legal Principle Established

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