Thornton v GEO Global Expertise & Outsourcing Pty Ltd t/as Junee Correctional Centre
[2006] NSWWCCPD 66
•26 April 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Thornton v GEO Global Expertise & Outsourcing Pty Ltd t/as Junee Correctional Centre [2006] NSWWCCPD 66
APPELLANT: Terrence Thornton
RESPONDENT: GEO Global Expertise & Outsourcing Pty Ltd t/as Junee Correctional Centre
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC3904-05
DATE OF ARBITRATOR’S DECISION: 15 June 2005
DATE OF APPEAL DECISION: 26 April 2006
SUBJECT MATTER OF DECISION: Leave to appeal; fresh evidence; Section 9A Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Steve Masselos & Co
Respondent: Diana Benk
ORDERS MADE ON APPEAL: Leave to appeal is refused.
The decision of the Arbitrator dated 15 June 2005 is confirmed.
No order is made as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 6 July 2005 Terrence Thornton (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 15 June 2005.
The Respondent to the Appeal is GEO Global Expertise & Outsourcing Pty Ltd t/as Junee Correctional Centre (‘the Respondent Employer’).
As at September 2004 the Appellant Worker was employed by the Respondent Employer as a correctional officer. His gross wage was $828 per week.
On Friday 3 September 2004 the custodial staff (including the Appellant Worker) at the Respondent Employer’s Junee Correctional Centre (‘the Centre’) “commenced industrial action” (see Appellant Worker’s statement 3 November 2004 paragraph five). The action taken was to withdraw their labour by going on strike. In addition the workers formed a ‘picket line’ outside the front entry to the Centre.
The Appellant Worker was a part of that picket line on 7 September 2004 when he was attempting to tie down a tent and he fell into a concrete drain landing heavily on his left side sustaining injury to his left shoulder and pain in his left knee.
As a result of his injuries he was unable to work until 2 October 2004. The strike action ceased on 10 September 2004 and the Appellant Worker sought weekly compensation from 11 September 2004 until 2 October 2004.
His claim was decided against him in an oral decision given on 7 June 2004.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 15 June 2004, records the Arbitrator’s orders as follows:
1. Award for the Respondent in relation to the Applicant’s claim.
2. No order as to costs.
The Arbitrator's reasons were delivered orally on the day of the hearing. He made the following relevant findings:
· at the time the Appellant Worker was injured he was on strike from his employment;
· the strike was in relation to a claim for better conditions and pay in the course of his employment;
· the incident occurred outside the Respondent Employer’s premises while the Appellant Worker was manning a picket line;
· that he was not satisfied that the picket line was an ‘official’ union picket line;
· the Appellant Worker was setting up a tent on the picket line when he fell into a ditch and dislocated his shoulder;
· the Appellant Worker was incapacitated for work for the period 11 September 2004 until 2 October 2004;
· the injury arose out of the course of employment;
· the Appellant Worker was not doing anything he was “expected, required or authorised to do to carry out his work” (transcript page 24), and
· the Appellant Worker’s employment was not a substantial contributing factor to his injury because he was doing something private for his own purpose.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
·whether the Arbitrator has made any error of law or error of jurisdiction;
·whether the threshold in section 352(2) of the Workplace Injury Managementand Workers Compensation Act 1998 (‘the 1998 Act’) has been met, and
·whether leave is to be granted to the Appellant Worker to rely on fresh evidence.
ON THE PAPERS REVIEW
Section 354(6) of 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 Numbers 1 and 6, the documents that are before me, and the submission 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.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
The Appellant Worker has provided a copy of the new evidence by attaching it to the appeal papers. The new evidence is a report from Dr Patrick dated 5 July 2005. This report refers to an earlier report of Dr Patrick’s dated 16 May 2005 (which is not before me and was not in evidence before the Arbitrator) and lists the cost of an arthroscopy for the left knee at $5,600.00 and an MRI at $600.00. The report has no detailed history of injury, no diagnosis and no opinion about whether there the treatment is reasonably necessary as a result of the injury.
There are a number of problems with this evidence:
· the Arbitrator accepted that the Appellant Worker sustained an injury to his left shoulder but made no finding about the left knee;
· the report of Dr Patrick of 5 July 2005 could and should have been obtained before the Arbitration hearing and it is therefore not ‘new evidence’, and
· none of the medical evidence before the Arbitrator addressed the condition of the Appellant Worker's left knee.
No explanation has been given as to why the ‘new evidence’ was not available in the proceedings before the Arbitrator and no submissions have been made as to why the evidence should be admitted on appeal.
It is true that the Appellant Worker's statement refers to pain in his left knee as a result of his fall on 7 September 2004 but the medical evidence tendered before the Arbitrator deals exclusively with the left shoulder. That evidence included:
· a number of reports from Dr Howard, orthopaedic surgeon, who saw the Appellant Worker for his shoulder only;
· an MRI scan report of the left shoulder from Dr Goodyear;
· an ultrasound report of the left shoulder from Dr Mouratidis;
· a report from Dr Barsoum (the Appellant Worker's general practitioner) dated 17 September 2004 referring the Appellant Worker to Dr Howard for his left shoulder, and
· medical certificates from Dr Barsoum certifying the Appellant Worker unfit because of his left shoulder injury.
I do not believe the Appellant Worker has made out a case for the admission of new evidence on the appeal. No circumstances have been identified that justify the introduction of new evidence on appeal. The medical case presented before the Arbitrator was for the left shoulder and there is no evidence that the treatment proposed by Dr Patrick is treatment that is ‘reasonably necessary’ as a result of the injury found by the Arbitrator.
LEAVE
The appeal was lodged within time under section 352(4) of the 1998 Act but before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352(2) of that Act.
Normally, two conditions must be met to satisfy section 352. The “amount of compensation at issue” on appeal must be both “at least $5,000” (section 352(2)(a)) and “at least 20% of the amount awarded in the decision appealed” (section 352(2)(b)). The second condition does not apply in the present case because no compensation was awarded (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCC PD 5).
The Appellant Worker submits that the threshold in section 352(2)(a) has been met because the amount of weekly compensation claimed is $3,777.60 and medical expenses are $6,975.00.
Quantification of the medical expenses is based on Dr Patrick’s report of 5 July 2005 which refers to expenses totaling $6,200 for treatment of the left knee. The balance is said to be for “HIC & other accounts” in the sum of $775. As noted above leave to rely on Dr Patrick’s report is refused. Therefore the only evidence on quantum is the value of the closed period (which I calculate to be $2,815.20) plus some unidentified medical expenses for $775. Assuming the Appellant Worker's calculations to be correct, the total amount of compensation at issue is $4,552.60, below the section 352(2)(a) threshold.
Therefore the Appellant Worker does not meet the threshold in section 352(2) of the 1998 Act and leave to appeal is refused.
SUBMISSIONS AND FINDINGS
If I am wrong in my rejection of the Appellant Worker's application to rely on fresh evidence the appeal would meet the threshold in section 352 and leave to appeal would be granted. Therefore I feel it is appropriate to make some general observations about the issue before the Arbitrator, namely, whether the Appellant Worker’s employment was a substantial contributing factor to his injury and whether the injury ‘arose out of’ the employment.
In Larance v Metropolitan Meat Industry Commissioner [1945] WCR 74 it was held that an injury during a stop work meeting at the employer’s premises was not an injury that either arose out of or in the course of the worker's employment. A similar conclusion was reached in Bateman v Department of Public Works (NSW) [1955] WCR 197 when the worker was injured while returning from a union meeting off the employer’s premises, even though attendance at the meeting was sanctioned by the employer.
For an injury to ‘arise out of’ a particular employment the test is whether there is a causal connection between the employment and the injury (Tarry v Warringah Shire Council [1974] WCR 1).
The question of a causal connection between an injury and employment was considered by the High Court in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 where Justice Windeyer said at 642:
“When the Act speaks of ‘the employment’ as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.”
This authority was applied by the Court of Appeal in Mercer v ANZ Banking Group (2000) 20 NSWCCR 70 in the context of section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’) where the President said at [13]:
“It is common ground between the parties and well-established by earlier authority that, when s 9A(1) speaks of ‘the employment concerned’ being a substantial contributing factor to the injury, the legislation is not referring to the fact of being employed, but to what the worker in fact does in the employment (see Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 632-3, 641). In other words, one starts with the actual and not the hypothetical, with what (if anything) the worker was in fact doing in his or her employment that caused or contributed to ‘the injury’ as defined in s 4.”
In Meeson v Placer Pacific Management Ltd (2002) 24 NSWCCR 297 the deceased worker was required by his employer to live in accommodation which it provided for him in Port Moresby where he worked as a senior geologist. The accommodation included an office where he worked when not ‘in the field’. He was ‘on call’ virtually 24 hours per day. He was killed by intruders in the provided accommodation in the early hours of the morning. Judge Neilson held at [142]:
“In my view, the worker's death did arise out of his employment because not only did it put the worker in the place and at the time when he was killed, but his employment also exposed him to the increased risk of personal injury, to the increased risk of being a victim of a burglary whilst residing in Port Moresby..”
In the present case the Appellant Worker was employed as a correctional officer at the Respondent Employer's Junee Correctional Centre. His activities on the day he was hurt involved him in standing outside his employer’s premises, presumably as an act of protest over employment conditions with the Respondent Employer. At the time he was hurt he was not doing anything that was part of his employment. He was not there at his employer’s request or encouragement. There was nothing about his employment that exposed him to a risk of falling as he did.
His activities were directly connected with his desire to bring about a change in his employment conditions. That may well have been a laudable goal but it does not mean that an injury sustained pursuing that goal while ‘on strike’ on a picket line outside the employers premises is an injury that ‘arises out of employment’ because in no sense can it be said that the employment provided a ‘causal connection’ to the injury. The authorities make it clear that there must be such a connection before compensation can be recovered.
Whilst it may well be that the activity of participating in a picket line outside an employer’s premises with a view to changing the terms and conditions of employment is related to the employment, but that falls well short of what is required before an injury on such a picket line can be said to arise out of employment within the terms of the 1987 Act.
It is relevant to note that some activities designed to advance workers’ terms and conditions are covered under section 12 of the 1987 Act. That section makes express provision for the recovery of compensation by an accredited trade union representative who is injured while performing his or her activities with the consent or at the request of an employer or pursuant to an industrial award or agreement. The Appellant Worker clearly did not meet any of the criteria for the application of that section.
In my opinion the Arbitrator was wrong to find that the Appellant Worker's injury arose out of his employment.
The Appellant Worker has submitted that a finding that an injury arises out of employment requires a finding that the employment must be a substantial contributing factor because the test for ‘arising out of’ is more demanding than the section 9A test in the 1987 Act. The authority relied on for this submission is Mercer. However, the Court of Appeal has clarified any uncertainty there may have been on this issue in ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257 at [17] where the President said:
“Nothing in those cases suggested that s9A is satisfied merely because the injury arose out of or in the course of employment. Nor does Mercer. Section 9A(3)(a) explicitly states that a finding that the injury arose out of or in the course of employment is not, in itself, a basis for a finding of substantial contributing factor.”
It is also submitted that the Arbitrator made jurisdictional errors by failing to take into account the connection “between the action concerned and the employment”. The argument is that because the strike was about “conditions of work, hours and staffing levels”, those matters gave the injury the necessary employment connection.
This submission ignores the fact that section 9A requires that employment be a substantial contributing factor to the injury. If an injury is sustained at a time when a worker has deliberately withdrawn his labour (for whatever reason) it cannot be said that the employment is a substantial contributing factor to that injury.
I agree that the Arbitrator was in error when he referred to the worker not doing something “he was required, expected or authorised to do”. That test is more correctly applied when determining whether an injury has been sustained in the course of employment (see Humphrey Earl Ltd vSpeechley (1951) 84 CLR 126). However, for the reasons I have outlined above, this error makes no difference to the end result and is of no consequence (see Snow Confectionary Pty Ltd v Askin [2004] NSW WCC PD 56).
Subject to the above comments on the issue of ‘arising out of’ I believe the Arbitrator was correct to find that the Appellant Worker's employment was not a substantial contributing factor to his injury.
OTHER
It should be noted that the only submission received from the Respondent Employer on the substantive issue on appeal was in a letter dated 26 July 2005. The submission said: “this appeal is nonsense”. I did not find that submission of any assistance. In addition the Respondent Employer did not file a Notice of Opposition to Appeal Against Decision of Arbitrator as required by Rule 77(5) of the Workers Compensation Commission Rules 2003.
DECISION
Leave to appeal is refused.
The decision to the Arbitrator of 15 June 2005 is confirmed.
COSTS
No order is made as to costs of the appeal.
Bill Roche
Acting Deputy President
26 April 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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