Trigg v K.D. Concepts Pty Ltd
[2006] NSWWCCPD 178
•7 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Trigg v K. D. Concepts Pty Ltd [2006] NSWWCCPD 178
APPELLANT: Tyrone Leonard Trigg
RESPONDENT: K. D. Concepts Pty Limited
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER: WCC181-06
DATE OF ARBITRATOR’S DECISION: 17 May 2006
DATE OF APPEAL DECISION: 7 August 2006
SUBJECT MATTER OF DECISION: ‘Injury’; ‘substantial contributing factor’; ‘psychiatric injury’; ‘intentional self-inflicted injury’; Sections 4, 9A and 14(3) of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: P K Simpson & Co Solicitors
Respondent: Moray and Agnew, Solicitors
ORDERS MADE ON APPEAL: 1. Leave to appeal is granted.
2. The decision of the Arbitrator dated 17 May 2006 is confirmed.
3. No order as to costs.
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 June 2006 Tyrone Leonard Trigg (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 17 May 2006.
The Respondent to the Appeal is K. D. Concepts Pty Ltd (‘the Respondent’), which employed Mr Trigg as a process worker from 1998 to 2001. GIO Workers Compensation (NSW) Limited (‘the Insurer’) acted for and on behalf of the Respondent in the Commission proceedings.
Mr Trigg has claimed lump sum compensation for permanent impairment arising from three injuries that he claims arose out of or in the course of his employment. The alleged injuries are:
· 2 October 1998, when Mr Trigg was cutting panels and an off cut was caught in the machine causing injury to the Applicant’s right hand.
· 30 April 2000 when he was hit in the face by an off cut.
· 4 April 2001 when he was putting timber into a machine and injured his right arm and shoulder.
The Arbitrator’s decision under appeal concerns a claim for lump sum compensation for the injury of 4 April 2001 to his right shoulder, for which the Respondent denies liability. Mr Trigg has admitted that he injured his shoulder at work on 4 April 2001 “on purpose”. However, he argues that he was suffering from a psychological injury at the time, which itself was caused by his employment. Section 14(3) of the Workers Compensation Act 1987 (‘the 1987 Act’) is critical to the determination of Mr Trigg’s claim. It provides that:
“Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury”.
Mr Trigg has been in receipt of weekly benefits compensation in relation to these injuries, however this forms no part of the current claim, before the Arbitrator or on appeal.
The matter proceeded to arbitration before a Commission Arbitrator on 5 April 2006 and a decision was issued on 17 May 2006.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 17 May 2006 (matter number 181-05) records the Arbitrator’s orders and attaches reasons. The Arbitrator issued a second Certificate of Determination on 17 May 2006, in the related matter (WCC 21827-05) of Mr Trigg’s claim for compensation for a psychiatric injury, against the same employer and insurer. This Certificate of Determination is not part of this appeal.
In relation to matter number 181-06, the Arbitrator summarised her findings in the ‘Statement of Reasons’ as follows:
“107. In summary the resolution of the issues in dispute is as follows:
· The Applicant did not receive an injury arising out of or in the course of his employment with the Respondent on 4 April 2001.
· The Applicant’s employment was not a substantial contributing factor to his injury on 4 April 2001.
· The defence under s14(3) [of the 1987 Act] is not established in respect of the injury on 4 April 2001 to the Applicant’s right shoulder.
· The claims in respect of deterioration of the Applicant’s right middle finger and deterioration of the Applicant’s severe facial disfigurement are to be referred to an AMS to report on the issue of deterioration including the degree of deterioration, if any, of the Applicant’s condition since 28 August 2003.
· The claim in respect of severe bodily disfigurement to the Applicant’s right hand and right middle finger on as (sic) a result of the injury on 2 October 1998 is to be referred to an AMS for assessment of permanent impairment.
· The Applicant’s entitlement is affected by a previous award.”
The Arbitrator then made the following orders:
“The determination of the Commission in this matter is as follows:
1.Award in favour of the Respondent in respect of the Applicant’s claim for lump sum compensation in respect of the injury on 4 April 2001 under s66 of the Workers Compensation Act 1987.
2.That the determination of the Applicant’s entitlements must await the outcome of the assessment of the AMS.
3.For costs purposes I certify that this matter was complex and proceeded directly to Arbitration. Costs orders, if any, should await final determination of all the issues in this matter.”
On appeal Mr Trigg seeks the following orders:
“(i)the decision of the Arbitrator in respect of the right shoulder injury on 4.4.01 be revoked;
(ii)and a new decision determining that the injury to the right shoulder on 4.4.01 did arise out of or in the course of the Applicant’s employment with the Respondent;
(iii)That the defence under s14(3) has been established in respect of the injury on 4.4.01 to the Applicant’s right shoulder;
(iv)That the injury to the right shoulder of 4.4.01 be referred to the Approved Medical Specialist for assessment of the permanent impairment and the threshold dispute as per the other injuries which the Arbitrator has referred to the AMS.
(v) Costs of the Appeal.”
The Respondent seeks orders that the Arbitrator’s decision be confirmed or, in the alternative, that:
“…the Arbitrator’s decision regarding section 14(3) be revoked and a finding entered in favour of the Respondent regarding the application of section 14(3), with the effect that the Applicant is denied compensation for loss of use of the right arm at or above the elbow pursuant to section 66”.
ISSUES IN DISPUTE
The Appellant has made submissions on the appeal. They do not clearly address the nature of the alleged errors made by the Arbitrator, however doing the best I can, I summarise what appear to be the grounds of the appeal as follows:
The Arbitrator erred in:
·Failing to give adequate weight, in determining whether Mr Trigg suffered an injury to his right shoulder on 4 April 2001, to the findings of fact and law she made in relation to his claim to have suffered a psychiatric injury on 23 March 2001, separately decided (‘Nexus to the Psychiatric Injury’).
·Finding, against the weight of the evidence, that Mr Trigg did not suffer an injury arising out of or in the course of his employment with the Respondent on 4 April 2001 (‘Weight of Evidence’).
·Finding that Mr Trigg’s employment was not a substantial contributing factor to his injury (‘Substantial Contributing Factor’).
·Failing to find that the defence under section 14(3) has been established in respect of the injury to the right shoulder on 4 April 2001 (‘Intentional Self-Inflicted Injury’).
The Respondent has made submissions on this issue and raised a further issue in the appeal. The Respondent submits that:
“. . . the Applicant needed only to have the intention to deliberately injure himself, and then act accordingly, resulting in an injury, for section 14(3) to apply. We further submit that the Arbitrator has artificially narrowed the plain intention of section 14(3) to apply to “any injury to…a worker caused by an intentional self-inflicted injury” (this argument is considered below under ‘Intentional Self-Inflicted Injury’).
ON THE PAPERS REVIEW
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by both 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(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.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was lodged within 28 days of the Arbitrator’s decision, in compliance with section 352(4) of the 1998 Act.
The threshold criteria in section 352(2) are met. The dispute concerns the lump sum compensation sought in relation to the injury to Mr Trigg’s right arm. This is in excess of $5,000. As no amount was awarded by the Arbitrator, section 352(2)(b) has no application (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
CONSIDERATION OF THE ISSUES
Nexus to the Psychiatric Injury
Mr Trigg claimed to have been assaulted at work by a co-worker in September 1998 and again in March 2001. In a separate decision (WCC 21827-05) the Arbitrator found that Mr Trigg “sustained a psychiatric injury as a result of the assault on him by Mr Garcia [a co-worker] during the incident on 23 March 2001 and that this injury arose out of or in the course of his employment with the Respondent”. She found there was “both a causal and temporal relationship between the injury and the employment” and that Mr Trigg’s employment was a ‘substantial contributing factor’ to his injury.
In this matter the Arbitrator expressed satisfaction that Mr Trigg:
“…suffered from Panic Attacks, Post Traumatic Stress Disorder, Major Depression and Dissociative Disorder as a consequence of the assault on 23 March 2001. I accept Dr Quinn’s opinion that the Applicant’s condition had been present and caused him to cease work in July 2001 and that the Applicant’s symptoms dated before that and were as far as Dr Quinn could ascertain present for a year.
…
The Applicant’s act in putting his gloved hand into a machine, which occurred not as part of his ordinary work but in order to cause an injury which would enable him to cease work for a period, was a deliberate and wilful act, and not part of, or reasonably incidental to, the Applicant’s work duties with the Respondent.The injury to the right shoulder did not arise out of his employment, as the Applicant’s wilful, deliberate and knowing act of self-injury was a novus actus, which broke any causal nexus between his employment and the injury.
Further, the Applicant stepped outside the course of his employment by engaging in an activity which was designed to cause an injury whereby he would cease work, and which was not related to the performance of his duties as an employee of the Respondent.
The evidence as to the Applicant’s mental state at the time does not establish that the Applicant was unable to control his behaviour, or that he was unaware of what he was doing, or did not apply his mind rationally to the question of whether or not he should injure himself.
Indeed the Applicant’s evidence that he intended, as he had done on another occasion, to cause a minor injury to his fingers which would cause only a short period of incapacity, demonstrated that what occurred was planned by the Applicant with some degree of consideration as to what consequences he wished to create but with an intention to limit the physical and economic consequences of self-injury to those which suited his immediate purposes.
Accordingly the injury to the right shoulder did not arise out of or in the course of his employment with the Respondent.”
Mr Trigg does not deny that, as a matter of fact, he deliberately injured his right shoulder on 4 April 2001. He argues “his will and reasoning powers were so overborne by his mental illness/psychiatric injury that his acts in causing the self-injury were unintentional”.
The Arbitrator expressly relied upon Mr Trigg’s evidence in coming to her conclusion that his will was not so overborne by his psychiatric illness that he did not act intentionally to injure himself on 4 April 2001. I have reviewed all of the evidence that was before the Arbitrator including the transcript of Mr Trigg’s oral evidence and find support for the Arbitrator’s findings in the following:
·Mr Trigg’s oral evidence was that he put his gloved hand in between the ‘boards and the air table’ on 4 April 2001 because he wanted to get away from a co-worker who had been harassing him and had assaulted him on 23 March 2001. He wanted to “just go on compo for a couple of weeks to get away from them [his co-workers who had allegedly harassed him] because they had me worried”.
·Mr Trigg said that he feared for his life after the assault of 23 March 2001.
·Mr Trigg’s oral evidence was that he intended only to jam his fingers but the machinery operated faster than he expected and it pulled his shoulder.
·Mr Trigg reported having trouble sleeping from around the time of the assault. Mr Trigg continued to work for the Respondent following the assault and the shoulder injury. He reported hearing voices shortly before he left work in July 2001.
·Dr Quinn, Psychiatrist, reported that Mr Trigg had symptoms of mental illness, as far as he could ascertain, for a year prior to July 2001.
·Dr Hampshire, Psychiatrist, reported that Mr Trigg’s psychological injury became clearly manifest during 2002 and then significantly worsened.
I agree with the Respondent’s submission, that “no real reasons are advanced in the Applicant’s submissions which point to an error in the decision made” by the Arbitrator. The submissions made on appeal were made to, and considered by, the Arbitrator. It was up to her to make relevant findings of fact and she did so. Her findings are not unreasonable or against the weight of the evidence. Having found that Mr Trigg suffered a psychiatric injury on 23 March 2001 she was not bound to find that the injury to his shoulder on 4 April 2001 also arose out of or in the course of his employment, by virtue of the proximity of the two incidents. The nature of the 4 April 2001 injury was a question of fact for determination on the evidence. The Arbitrator found the evidence of Dr Quinn and Dr Hampshire persuasive. She accepted that Mr Trigg had symptoms of his illness prior to 4 April 2001. However she also found Mr Trigg to be a frank and truthful witness. Mr Trigg’s evidence of his intention to injure himself so that he could get time off work was stark. He did not refer to the influence of ‘voices’ or other psychiatric symptoms, which he said manifested later in his illness. He expressed an apparently rational fear of the co-worker who had assaulted him, and a desire to get away from work for a period ‘of a couple of weeks’. He did not describe any of the later, documented, psychiatric symptoms as occurring on 4 April 2001. Although Dr Quinn opined that Mr Trigg probably had symptoms of his illness for one year prior to July 2001, he did not have the benefit of seeing Mr Trigg during that time and making a contemporaneous clinical assessment. To this end Mr Trigg’s own evidence of his intention on 4 April 2001 is more persuasive. I am not satisfied that any error is disclosed in the Arbitrator’s finding that the psychiatric injury suffered by Mr Trigg was not causally related to the later injury to his right shoulder.
Weight of Evidence
The Appellant argues that the weight of the evidence supports a finding that Mr Trigg suffered an injury ‘arising out of or in the course of’ his employment. The Arbitrator’s approach to the determination of the matter necessarily first addressed the question of whether there was a compensable ‘injury’. Her conclusions on the issue of ‘injury’ pursuant to section 4 of the 1987 Act are set out above. She found there to be no compensable ‘injury’ in the terms of the Act because, as a question of fact, the injury did not ‘arise out of or in the course of employment’.
The phrase ‘in the course of employment’ denotes a temporal connection between the employment and the injury (Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504). In Henderson v Commissioner for Railways (1937) 58 CLR 291 Dixon J stated (at 294) that:
“The general principle governing the ascertainment of the ‘course of employment’ appears now to be settled. It is not merely a question of the existence and continuance of a relationship. To be in the course of the employment, the acts of the workman must be part of his service to the employer.”
Activities “incidental to the performance of the work is covered by the course of the employment”, see Humphrey Earl Limited v Speechley (1951) 84 CLR 126 at 133.
In determining whether an injury occurred ‘in the course of employment’ regard must be had to the nature, terms and conditions of that particular employment (Hatzimanolis v A.N.I. Corporation Limited (1992) 173 CLR 473).
It was for the Arbitrator to determine, on the evidence before her, whether Mr Trigg took himself outside ‘the course of his employment’ when he deliberately put his hand in the machine that, ultimately, injured his shoulder on 4 April 2001. If he did take himself outside the course of his employment in this way then he cannot meet the definition of ‘injury’ in section 4 of the 1987 Act (Higgins v Galibal Pty Limited (1998) 45 NSWLR 45; Pollack v Stickfast Labels Pty Limited (in liq) (2002) 24 NSWCCR 279). If it were found that his actions did not take him outside the course of employment then it would be for the Arbitrator to proceed to consider whether section 14(3) of the 1987 Act applied to deny him workers compensation benefits (in addition to satisfaction of section 9A of the 1987 Act).
The Arbitrator found that Mr Trigg’s action of self-harm was not an act that was authorised, endorsed or characteristic of his employment. It was not an action that was part of, or incidental to, the nature and scope of his duties. Clearly an act of self-harm was not required or authorised by his employer. It was a deliberate act that had nothing to do with his duties and did not arise ‘in the course of’ his employment. On the evidence before her this was a finding that was reasonable and that she was entitled to make.
The phrase ‘arising out of employment’ denotes a causal connection between the employment and the injury. Its satisfaction requires an unbroken causal connection between the injury and the employment. If the fact of the workers employment caused or contributed to the injury then it may be said to have ‘arisen’ out of that employment (Nunan v Cockatoo Docks & Engineering Co Pty Ltd (1941) SR (NSW) 119. Mr Trigg argued that the necessary causal connection was found in the relationship between his psychiatric injury and his action in wilfully injuring his shoulder on 4 April 2001. The Arbitrator found, as a matter of fact, that the necessary causal connection was not made out. This is discussed above. Having made those findings of fact she then applied the definition of ‘injury’ in section 4 of the 1987 Act and found, as a matter of law (Hope v Bathurst City Council (1980) 144 CLR 1), that Mr Trigg did not suffer an ‘injury’ as defined. On this basis, the Arbitrator did not err in finding that Mr Trigg’s injury did not ‘arise out of his employment’.
Substantial Contributing Factor
Had the Arbitrator been wrong in her conclusion that an ‘injury’ as defined in section 4 of the 1987 Act had not been made out (which conclusion I have found is not an error), then it would have been necessary to consider section 9A of the 1987 Act, i.e. was the employment a ‘substantial contributing factor’ to the injury? Employment need not be the only contributing factor that leads to the injury (Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 (‘Mercer’)).
The Arbitrator, having found that the ‘injury’ did not arise out of or in the course of Mr Trigg’s employment, did not need to consider whether that employment was a ‘substantial contributing factor’ to that injury. However, she found as follows (at [87]):
“In relation to S9A, it is established, in my view, that the Applicant’s reasons for causing some injury to himself on 4 April 2001 were based on his reaction to work events, which were genuinely distressing to him, and caused him considerable emotional turmoil. Nevertheless, although he was undoubtedly upset, and perhaps angry, at how he had been treated at work, this is not sufficient to overcome the fact that his conduct in causing self-injury was intentional. Such intentional conduct was a novus actus which broke the chain of causation between the Applicant’s employment and the injury that the Applicant sustained.”
In my view the Arbitrator did not err in finding that Mr Trigg’s employment was not a ‘substantial contributing factor’ to his injury. Mr Trigg’s action in deliberately putting his hand in the machinery was not an act within his employment. Section 9A refers to the ‘employment concerned’, a phrase considered by the Court of Appeal in Mercer (Mason P, with whom Meagher and Beazley JJA agreed) as follows (at 745):
“It is common ground between the parties and well established by earlier authority, that when 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. 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 s4.”
The Arbitrator refers to RTA v AMP (2001) NSWCA 186, noting that case concerned a common law claim for negligence. Spigelman CJ, reviewed a number of the workers compensation and common law cases in relation to the issue of ‘causation’ between work and the suicide or death of a worker. Although he was finding on a common law claim he stated, relevantly, that “[a]ctions involving the deliberate infliction of self harm should generally be regarded as ‘independent and unreasonable’ and as a break in the sequence of events that may otherwise constitute a causal chain for the purpose of attributing legal responsibility” (at [30]). The Arbitrator concluded that Mr Trigg’s conduct was such as to break the chain of causation between his employment and his injury, and therefore that his employment was not a ‘substantial contributing factor’ to his injury. The Appellant’s submissions do not address the Arbitrator’s findings in relation to section 9A of the 1987 Act and do not identify any error in her findings. In my view, her conclusions were open to her and do not disclose any error of law, fact or discretion.
Intentional Self-Inflicted Injury
The Arbitrator did not rely upon section 14(3) of the 1987 Act in coming to her decision. She clearly determined that Mr Trigg did not suffer an ‘injury’ as that term is defined in section 4 of the 1987 Act. She addressed both the temporal and causative aspects of that definition and found that Mr Trigg did not suffer an injury that arose ‘out of or in the course of’ his employment with the Respondent. In relation to the submissions on the application of section 14(3) that were made to her she noted that (at [93-94] of the reasons):
“In the light of the findings already made, it is strictly speaking unnecessary to decide whether the defence under s14(3) has been established by the Respondent. However for completeness I shall decide this issue.
The ingredients of the defence under s14(3) are that (a) there was an intentional self-inflicted injury and (b) such injury caused an injury to the worker or death of the worker. It can be assumed that the Applicant suffered an intentional self-inflicted injury of a relatively minor kind when his gloved fingers or hand went into the machine. However, in terms of s14(3), the injury to his right shoulder was not caused by an intentional self-inflicted injury to the fingers or hand but rather was caused by the sudden force exerted on his right shoulder as a result of his arm being unexpectedly pulled by reason of the moving machine dragging his gloved finger and hands with the machine. Although, on one view, this distinction is a fine one which may not readily command instinctive acceptance it is a distinction which s14(3) both authorises and requires in the present case. It is necessary for a statutory decisional body such as the Workers Compensation Commission to adhere to the language chosen by the legislature in enacting s14(3) and not to go beyond that language by a process of extension or analogy not authorised by the legislature.”
The use of the term ‘injury’ twice in section 14(3) of the 1987 Act (“in respect of an injury to …a worker caused by an intentional self-inflicted injury”) poses a difficult question of construction. Whether either or both of these references are to the statutory definition in section 4 of the 1987 Act must be considered. The obvious difficulty with section 14(3) is that it will have no application if an action of intentional self-harm takes a worker outside of the definition of ‘injury’ in section 4 as occurred in this case. Where the worker suffered an injury ‘arising out of or in the course of’ his employment and that injury was ‘intentional’ and ‘self-inflicted’, compensation is not payable (section 14(3)). In my view Mr Trigg would be unable to obtain compensation for the injury of 4 April 2001 in any event because the Arbitrator found that his action was ‘intentional’ and caused a ‘self-inflicted’ injury, and these findings were, as discussed above, open to her on the evidence.
As stated above, it was open for the Arbitrator to find, as a question of fact that Mr Trigg intended to inflict harm on himself when he put his hand before the machine on 4 April 2001. Having found that he was not acting under the symptoms of his psychiatric illness she concluded that he possessed the necessary ‘intention’ to self-harm. However the Arbitrator’s distinction, drawn on the evidence and set out above, between Mr Trigg placing his hand in the face of the machinery and the consequent (unexpected) injury to his shoulder appears to me to be unnecessarily technical. I agree with the Respondent’s submission that section 14(3) of the 1987 Act does not make this distinction. Section 14(3) requires that the worker’s intention be to cause ‘injury’. Whether or not that is a reference to the statutory definition of ‘injury’ is not the issue here. Mr Trigg stated his intention to “jam [his] fingers” in the machine he was working on, and that “it was only like meant to be a little tiny injury just to get me away-get away for a week or two”. He clearly intended to cause himself physical harm. The fact that he ended up causing greater physical harm than he intended is irrelevant.
In my view the Arbitrator could have approached the reasoning in this matter in a number of different ways, depending upon her findings on the facts. Had she found that Mr Trigg suffered an ‘injury’ (section 4 of the 1987 Act) then it was, on my view of the evidence, open to her to find that his employment was not a ‘substantial contributing factor’ to that injury (section 9A of the 1987 Act). It was also open to her to find, on the evidence that Mr Trigg acted intentionally to harm himself and was therefore precluded from receiving compensation, pursuant to section 14(3) of the 1987 Act. In any event, either on the basis which the Arbitrator approached the resolution of the issues, or on the alternative bases, the conclusion is that Mr Trigg is not entitled to compensation for the injury of 4 April 2001.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
The Appellant has been ‘unsuccessful’ on appeal (section 345 of the 1998 Act). I am not satisfied, however, that the appeal was ‘frivolous or vexatious, fraudulent or made without proper justification’ (section 341 of the 1998 Act). The appropriate order is ‘no order as to costs’.
Dr Gabriel Fleming
Deputy President
7 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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