Trustees for the Roman Catholic Church for the Diocese of Maitland-Newcastle v Barrett
[2010] NSWWCCPD 62
•4 June 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Trustees for the Roman Catholic Church for the Diocese of Maitland-Newcastle v Barrett [2010] NSWWCCPD 62 | |||||
| APPELLANT: | Trustees for the Roman Catholic Church for the Diocese of Maitland Newcastle | |||||
| RESPONDENTS: | Edward Barrett | |||||
| INSURER: | Catholic Church Insurances Limited | |||||
| FILE NUMBER: | A1-7477/09 | |||||
| ARBITRATOR: | Ms J Peacock | |||||
| DATE OF ARBITRATOR’S DECISION: | 5 March 2010 | |||||
| DATE OF APPEAL DECISION: | 4 June 2010 | |||||
| SUBJECT MATTER OF DECISION: | Section 10(1D) of the Workers Compensation Act 1987 | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Michael Snell | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Astridge & Murray | ||||
| Respondent: | Bale Boshev | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 5 March 2010 is confirmed. | |||||
| The Appellant Employer is to pay the Respondent Worker’s costs of this appeal. | ||||||
BACKGROUND TO THE APPEAL
On 30 March 2010 the Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 5 March 2010.
The Respondent to the Appeal is Edward Barrett (‘the Respondent Worker’).
The Respondent Worker is now 62 years of age, with a dependent wife. He has been employed by the Appellant Employer as a casual school teacher since 31 July 1998. As at 21 July 2007 he was teaching at All Saints St Mary’s Maitland. At the end of his day’s work teaching that day, he was driving home, from Maitland to his residence at North Rothbury. On the New England Highway at Lochinvar he was involved in a motor vehicle accident.
He states he was knocked unconscious, and was taken by ambulance to Maitland Hospital. His statement describes multiple injuries, including to the neck.
The Appellant Employer voluntarily paid the Respondent Worker compensation for his time off, from 22 July 2007 to 23 August 2007, when he resumed his work as a teacher.
On 1 December 2008 the Respondent Worker was examined by Dr Higgs, orthopaedic surgeon. He concluded the Respondent Worker had suffered a soft tissue strain to the neck, with permanent aggravation of pre-existing degenerative cervical spine pathology. He assessed five percent whole person impairment as a consequence, which he reduced by one tenth on account of the pre-existing pathology, leaving an impairment of 4.5 percent caused by the motor accident. This figure he then rounded up to five percent. The Respondent Worker made a claim pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’), based on this five per cent assessment, on 6 January 2009.
The Respondent Worker was assessed by Dr Watson, orthopaedic surgeon, at the Appellant Employer’s request on 20 February 2009. He concluded the Respondent Worker’s ongoing cervical symptoms resulted from a constitutional condition (cervical spondylosis), and there was no impairment resulting from the motor accident. The Appellant Employer denied liability for the section 66 claim on 15 April 2009. These proceedings were commenced by an Application to Resolve a Dispute registered on 16 September 2009. The only claim pleaded was for a sum of $6,875.00 pursuant to section 66, in respect of the five percent impairment assessment.
The initial date for arbitration in the matter was 16 December 2009, on which occasion the Appellant Employer sought leave to plead a defence pursuant to section 10(1D) of the 1987 Act. The matter was consequently adjourned, and was heard on 10 February 2010. Both parties were represented by counsel, who addressed. No oral evidence was adduced.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 5 March 2010 records the Arbitrator’s orders as follows:
“1. That the matter be remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the degree of permanent impairment, if any, in relation to cervical spine resulting from injury on 31 July 2007.
2. That the following documents are admitted and are to be forwarded to the Approved Medical Specialist:
2.1 Application to Resolve a Dispute and attached documents
2.2 Reports of Dr Ambrogetti dated 31 October 2007, 20 December 2007 and 22 December 2007 filed by the Applicant with an Application to Admit Late Documents dated 15 December 2009
2.3 Statement of the Applicant dated 11 January 2010 and filed by the Applicant with an Application to Admit Late Documents on 12 January 2010
2.4 Documents produced under direction from Maitland Hospital and filed by the Applicant with an Application to Admit Late Documents on 16 November 2009
2.5 Reply and attached documents filed 7 October 2009
2.6 Amended Reply and Attached Documents filed with an Application to Admit Late Documents dated 21 December 2009.”
ISSUES IN DISPUTE
As the matter was conducted at the arbitration hearing, there were two issues, additional to quantum. The first was whether the motor accident resulted in injury to the Respondent Worker’s cervical region. The second was whether the injury, in the course of an (admitted) journey within the meaning of section 10 of the 1987 Act, occurred in circumstances affording the Appellant Employer a defence pursuant to section 10(1D) of that Act. The arbitrator decided each of these issues in the Respondent Worker’s favour.
On this appeal, the only issue pursued by the Appellant Employer is the availability of a defence pursuant to section 10(1D).
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.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Section 352(2) of the 1998 Act provides:
“(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.”
At this point in time, no actual sum has been awarded. Having decided the issues that were raised, in the Respondent Worker’s favour, the arbitrator has then made appropriate orders for referral to an approved medical specialist, a necessary step before an award can be entered pursuant to section 66.
In Grimson v Integral Energy [2003] NSWWCCPD 29 (‘Grimson’) Fleming DP, considering the application of section 352(2) said:
“30. The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The “. . . amount of compensation at issue on the appeal” is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularized by the Applicant.”
The amount claimed is in excess of $5,000.00. The challenge made by the Appellant Employer is on the basis of a threshold issue going to injury that, if it were to succeed, would defeat the Respondent Worker’s claim in its entirety. It follows that in my view, applying the above passage from Grimson, the provisions of section 352(2) are complied with. This is also consistent with the reasoning in Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7.
A further matter that did concern me on the question of ‘leave’, given that a final award for a monetary sum had not been made, was whether the appeal should be characterised as ‘interlocutory’, within the meaning of section 352(8) of the 1998 Act and Regulation 200B of the Workers Compensation Regulation 2003 (see the authorities discussed in Moore v Greater Taree City Council [2009] NSWWCCPD 17). However I note the Respondent Worker has not challenged the granting of leave on this basis. Having regard to the fact that the arbitrator’s decision finally decided the rights of the parties on the threshold issue of injury and the availability of section 10(1D) as a defence, and the Respondent Worker’s apparent acceptance that the decision is not ‘interlocutory’, I will proceed on the basis the decision appealed from was not ‘interlocutory’.
I grant leave to appeal.
DISCUSSION AND FINDINGS
In conducting this appeal pursuant to section 352 of the 1998 Act, I am required to undertake a review, in accordance with the principles identified in State Transit Authority of NSW v Chemler [2007] NSWCA 249; 5 DDCR 286, and Sapina v Coles Myer Limited [2009] NSWCA 71; 7 DDCR 54.
As previously observed, the only issue raised in this appeal is the application of section 10(1D) of the 1987 Act. The Appellant Employer raises the following grounds, going to that issue:
(i) the arbitrator erred in her application of Simeon Wines t/as Buronga Hill Winery v Bobos [2004] NSWCA 342 (‘Simeon Wines’);
(ii) the arbitrator erred in failing to consider NSW Police Force v Cox [2009] NSWWCCPD 20 (‘Cox’);
(iii) the arbitrator erred in failing to characterise “tiredness” or a “microsleep” as a ‘condition’ within the meaning of ‘other condition of the worker’ as that phrase is used in section 10(1D), and
(iv) the arbitrator should have found the Appellant Employer had discharged its onus of establishing a defence pursuant to section 10(1D).
It was common ground that the journey on which the Respondent Worker was engaged, at the time of the motor accident, fell within section 10(3)(a) of the 1987 Act, and accordingly compensation was payable in respect of personal injury sustained in the accident, pursuant to section 10(1), subject to the specific defence raised. The Appellant Employer rightly accepts that it carries the onus of establishing a defence pursuant to Section 10(1D), which provides:
“(1D) Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury.”
The Respondent Worker’s claim form dated 9 August 2007 described how the injury was sustained as “Blackout – causing accident”. His “claim form for injury on the journey” of the same date described the accident:
“Must have blacked out – saw guide post ahead of me – remember nothing else until awoken by ambulance officers.”
The Respondent Worker described the accident in his statement dated 19 August 2009 as follows:
“7. At approximately 4.50 pm whilst travelling west along the New England Highway at Lochinvar I believe that I suffered a micro-sleep. I awoke to find my car heading towards a guide post on the side of the road. I veered back to the road and collided with a car which was travelling behind me in the same direction. (I was knocked unconscious upon impact.) As a result of that collision, my car was set into a spin. I, in turn, collided with a vehicle travelling in the opposite direction.”
The description of the ‘Injury Details’ at Part 4 of the Application relevantly describes the injury as follows:
“On 31 July 2007, in the course of his employment with the Respondent, the Applicant was driving home from work. Whilst travelling West on the New England Highway at Lochinvar, the Applicant lost control of his vehicle following a micro sleep and collided with other vehicles.”
A statement of the Respondent Worker dated 11 January 2010 (after the Appellant Employer’s Reply had been amended to plead section 10(1D)) described what happened in these terms:
“I recall that I negotiated the sweeping right hand bend, my car drifted to the left however, did not actually leave the roadway. My car was heading towards a guidepost on the left hand side of the road. I attempted to correct the vehicle’s line of travel. I believe that I overcorrected and veered back onto the road, colliding with a vehicle travelling behind me in the same direction.”
And:
“I understand that a history has been reported in medical records to the effect that I may have suffered a micro sleep. I provided that history in terms of questioning myself as to what might have happened to cause the accident, rather than against a specific recollection of having fallen asleep, or a specific history of similar incidents. Similarly, I have not suffered any such occurrences of falling asleep at inappropriate times, since the accident.”
The ambulance notes from the date of accident record relevantly:
“Witness states (patient) driving up steep hill drifted off road overcorrected then hit rear passenger side by car following, travelled to other side of road then hit by car coming down hill. (Patient) does not recall drifting off road but recalls all events after…”
Documents from the Police Department describe the accident; they contain no reference to the Respondent Worker falling asleep or suffering a blackout.
Notes from the Maitland Hospital (where the Respondent Worker was conveyed by ambulance after the accident) record the lead up to the accident:
“Lost consciousness driving in 100 kph zone. Crossed to oncoming traffic.”
A report from the Respondent Worker’s general practitioner Dr Innis dated 24 October 2008 contains the following history:
“Edward was involved in a car accident on 31/7/2007. I fist saw him in relation to this on 2/8/2007. I saw him again on 6/8/2007 and he complained of a painful right chest and stated that he could not drive due to the pain. He reported that he could not remember the accident. The first thing he remembered was being in the ambulance after the accident. Allegedly he had veered off into the side of the road after possibly falling asleep driving home from work.”
Dr Innis’s report records it “was assumed that the accident was the result of either falling asleep at the wheel or a loss of consciousness”. Consequently investigations were carried out, including a sleep study, that “suggested sleep apnoea”. He was referred to a sleep specialist, Dr Ambrogetti.
Dr Ambrogetti’s report dated 31 October 2007 said “clinically it seems unlikely that sleep apnoea is a major contributor to the above event (the motor accident)”. He thought “clinically the falling asleep was a combination of the time of day around 4-4.30 pm, previous lack of sleep having been up very late at night the previous week or two watching sport on television rather than sleep apnoea.” Dr Ambrogetti’s report dated 20 December 2007 refers to a “sleep study and MWT”. Sleep apnoea was not present, there was normal sleep, and there was “no sleep related reason why Mr Barrett should not resume his driving”.
On the medical evidence overall, it could not be concluded the medical condition of sleep apnoea (or any other medical condition associated with sleeping disorders) was present. In these circumstances, the Appellant Employer put its case pursuant to section 10(1D) on the basis “tiredness or microsleep” constituted an ‘other condition of the worker’ for the purposes of that subsection (see T9.50 to 10.10, 16.55 to 17.5, 21.40). The Respondent Worker disputed that tiredness could be characterised as a ‘condition’ for the purposes of the subsection (see T15.55, 19.5).
During the running of the arbitration hearing, the arbitrator enquired of counsel whether there was relevant authority going to the section 10(1D) issue. She was informed there was not, although she was then referred to the decision of Roche DP in Cox. In her Reasons for Decision the arbitrator observed there was “very clear authority from the Court of Appeal” in Simeon Wines, regarding the meaning of the phrase “or other condition of the worker” in section 10(1D). After setting out a passage from that decision, the arbitrator reasoned that “‘other condition of the worker’ must be interpreted, in the context of section 10(1D), to be ‘a condition of the same kind as a medical condition’”. She then concluded there was no medical evidence to establish the Respondent Worker suffered from “a medical condition or other condition of the same kind as a medical condition”. Tiredness was not a medical condition.
Did the Injury Result From the Medical or Other Condition of the Worker?
The Appellant Employer on this appeal argues tiredness is a “condition of the same kind as a medical condition”, as it represents “a response by the body to a physiological need”. If such a condition did not fall within the phrase “or other condition”, then that phrase would be meaningless in the subsection.
The arbitrator quoted the following passage from the judgment of Sheller JA (Santow JA & Young CJ in Eq agreeing) in Simeon Wines at [17]:
“If the phrase “from the medical or other condition of the worker” meant “from the medical or any other condition of the worker” it would be expressed more simply by the words “from any condition of the worker”. The word “medical” would be superfluous. In argument, Simeon Wines suggested that the expression should be limited in some other way such as to a condition giving rise to a particular risk of injury. Such an argument involves acceptance that some limitation must be placed upon the natural meaning of “condition”. If this be so, the obvious limitation is found in the rule of law generally known as the ejusdem generis rule or the rule noscitur a sociis. Lord Campbell in R v Edmundson (1859) 28 LJMC 213 at 215 enunciated the ejusdem generis rule as follows: “where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified”. In my opinion, membership of the Bandidos Bikie Gang was not a condition of the same kind as a medical condition and therefore not a condition of the worker within the meaning of that phrase in s10(1D). Accordingly, I regard an appeal on this ground as having no prospect of success.”
Applying the above passage, the condition of the worker in this appeal, tiredness, would have to be characterised as “a condition of the same kind as a medical condition” for section 10(1D) to have application. The Appellant Employer argues it can be so characterised, as tiredness is a response by the body to a physiological need. There is no authority referred to, to support the proposition that something that is a response to a physiological need, should consequently be characterised as being “of the same kind as a medical condition”.
I do not accept the Appellant Employer’s submission on this point. A worker may be distracted whilst driving on a journey, due to being hungry or thirsty. He may shiver involuntarily due to being cold. His hand, wet with perspiration due to him being hot, may slip on the steering wheel. All of these examples would represent a response by the body to a physiological need or stimulus. I do not accept they could be characterised as conditions of the same kind as medical conditions. They simply represent part of the state of being human. I do not find any error in the arbitrator’s application of Simeon Wines to the facts of this matter, and I agree with her that tiredness, of itself, is not a condition of the same kind as a medical condition.
Failure to Consider the Decision of Cox
The second ground of appeal relied upon by the Appellant Employer, is that the arbitrator failed to take into consideration the decision of Roche DP in Cox. That matter involved a police officer who was suffering from a viral illness in the days prior to his alleged injury. Whilst driving a police vehicle in the course of his employment, he had an “explosive bout of coughing”, that was immediately associated with severe pain in the head, and weakness in the left side of the body. There was no collision or anything of that nature, the symptoms occurred when he coughed. Roche DP specifically found the worker was in the course of his employment at the time of the alleged injury, and was not on a journey within the meaning of section 10 of the 1987 Act. The Deputy President briefly referred to the application of section 10(1D), saying at [117]:
“If I am wrong in my interpretation of section 10 and it is considered that the section is applicable to the current claim, the Police Force argues that Mr Cox has no entitlement because his injury has resulted from “the medical or other condition of the worker and the journey did not cause or contribute to the injury” (section 10(1D)). The “medical or other” condition relied on is the viral infection and coughing Mr Cox experienced in the days up to and including 13 June 2004 that caused his explosive coughing on that day. For the reasons set out at [103(d) and (e)] above, I am comfortably satisfied that Mr Cox’s injury resulted from his viral infection and the cough on 13 June 2004 and that the journey did not cause or contribute to the injury.”
It is apparent the factual position in the current appeal is readily distinguishable from that in Cox. In Cox there was a specific finding of fact that the worker suffered from a viral infection that gave rise to a coughing fit, and that this explosive coughing fit caused the injury. I can see no difficulty in characterising a viral infection as a medical condition. It clearly may be contrasted with tiredness. Cox contains no consideration of the meaning of the phrase “or other related condition” in section 10(1D). The above passage in Cox is obiter. Cox contains no reference to the decision in Simeon Wines, and there is nothing said in Cox that is in any way inconsistent with the passage from Simeon Wines I have set out above, and on which the arbitrator relied. The decision in Cox does not, in my view, assist the Appellant Employer’s argument.
Is Tiredness or Microsleep ‘Other Condition of the Worker’ Within Section 10(1D)?
The third ground of appeal is that the arbitrator erred in determining ‘tiredness’ or a microsleep’ did not constitute a ‘condition’ within the meaning of the phrase “other condition of the worker”. This issue has been largely dealt with in the discussion regarding the first ground of appeal, and the application of Simeon Wines. The submissions on this point set out various references to the evidence, which lead to the submission “there was ample evidence that the Worker had fallen asleep at the wheel, probably as a consequence of tiredness”. I accept there was evidence that could support a factual finding the motor accident occurred when the Respondent Worker lost control of his vehicle after briefly falling asleep. This would be consistent with the claim documents, the history recorded at Maitland Hospital, the history recorded in the ambulance report, and the earlier of the Respondent Worker’s statements, attached to the Application. It is consistent with how the Application is pleaded.
The arbitrator regarded the Appellant Employer’s case “at its highest” as being that the Respondent Worker “was tired and he fell asleep at the wheel or suffered from a microsleep”. She did not actually make a finding regarding whether the Respondent Worker fell asleep or not, she having concluded that, even if he did fall asleep, this was insufficient for the Appellant Employer to make out a defence pursuant to section 10(1D) (see her reasons at [26] to [28]).
Whilst there is evidence both ways, on the probabilities I would accept the Respondent Worker lost control of his vehicle when he briefly fell asleep whilst driving. This is consistent with his losing control. It is also consistent with the more contemporaneous histories regarding what happened. However this is insufficient for the Appellant Employer to make out the defence. For the reasons set out above, on the evidence in this case, it is not established that tiredness is a “medical or other condition of the worker”.
Did the Appellant Employer Discharge Its Onus of Proof?
The fourth ground of appeal raised is that the arbitrator erred in finding the Appellant Employer had not discharged its onus of proof, to establish the defence pursuant to section 10(1D). The arbitrator had noted the Appellant Employer carried the onus at [26] of her reasons, applying McGraw v Commonwealth Bank of Australia Ltd (2002) 24 NSWCCR 372 (‘McGraw’). The Appellant Employer does not contend otherwise on this appeal.
In its submissions in support of this ground, the Appellant Employer largely reiterates its earlier argument, that the evidence was sufficient to establish tiredness as a cause of the motor accident, and tiredness should be characterised as an ‘other condition of the worker’ for the purposes of section 10(1D). It raises one additional point, that the arbitrator referred to the Appellant Employer not having obtained evidence of its own on this issue. It is submitted that a “requirement by the Arbitrator that the Appellant ought to have adduced medical evidence as to whether the condition was akin to a medical condition placed a greater onus on the Appellant than that established on the balance of probabilities.”
The passage to which this submission refers is at [26] of the reasons. The arbitrator noted the Appellant Employer relied on the opinion of the treating doctor, and had not obtained its own evidence on the point. I do not read the passage as suggesting the Appellant Employer could not establish the defence on the basis of evidence in the Respondent Worker’s case, if the evidence supported it. The passage does not, in my view, suggest the arbitrator regarded the Appellant Employer as being required to establish its defence on anything other than the ordinary civil onus. The balance of the matters raised, in the submissions going to the fourth ground of appeal, have already been dealt with in discussion of earlier grounds, particularly the first.
Did the Journey Cause or Contribute to the Injury?
The Appellant Employer’s submissions concern themselves with whether the condition of tiredness can be characterised as a ‘medical or other condition of the worker’, within the meaning of section 10(1D). However even if it had succeeded on this point, the defence still would not have been available, unless it could also be shown “the journey did not cause or contribute to the injury”. The Respondent Worker’s submissions raised this further requirement of section 10(1D). The Respondent Worker submitted the journey caused or contributed to the injury in two respects. Firstly, the journey provided an opportunity for the collision, which in turn resulted in the Respondent Worker’s injuries. Secondly, the incident occurred after a day’s work, when the Respondent Worker might become tired.
This limb of section 10(1D) was considered by Armitage J in McGraw. His Honour quoted the second reading speeches in respect of Act 214 of 1989 (which inserted the subsection into the 1987 Act), in both Houses of Parliament. That in the Legislative Council (set out at [38] of his Honour’s judgment) was in the following terms:
“In summary, coverage will not be provided for journey injuries which are not caused, or contributed to, by the journey and are not otherwise work related. Only if there is a relevant connection with the journey should injuries on periodic journeys be claimable. Injuries occurring on journeys between home and work which result from a medical condition suffered by the worker will continue to be covered if they are either contributed to by the journey - for example, by the stress involved - or causally related to the employment”.
His Honour then at [39] expressed the following view of the construction of section 10(1D):
“The clear legislative intention to my mind is to exclude from s 10(1) coverage for “injuries” so called, which result purely and simply from medical conditions suffered by the worker and not from anything that occurred on the journey.”
In the same case, Armitage J at [43] noted the word “‘Contribute’ would seem to pose a lesser connection with a given event than the term ‘cause’.” His Honour observed the contribution from the journey does not need to be substantial, so from a worker’s point of view it is sufficient if “the journey contributed causally, even if in a minor way, to the happening of the injury.”
Mahoney JA in Minchinton v Homfray (1994) 10 NSWCCR 778 at 785G described a ‘journey’ as “a spell of going or travelling, viewed as a distinct whole”. This was quoted with apparent approval in the plurality judgment in Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [29].
In the current appeal, the spell of going or travelling consisted of travel as a driver of a motor vehicle, on the New England Highway, where a speed limit of one hundred kilometres per hour had application at the place where the accident occurred. The occurrence of a microsleep would not, of itself, be expected to result in injury. If a worker was sitting on a train or bus and this occurred, it would be an insignificant event. What resulted in the capacity for injury was the occurrence of the microsleep whilst driving a motor vehicle on a highway. These circumstances had the consequence the motor vehicle ran out of control, ultimately coming into collision with two other vehicles. In such circumstances, it is in my view clear the journey contributed to the injury. Thus, even if the first question (whether tiredness was a medical or other condition of the worker) had been answered in the Appellant Employer’s favour, it still would have failed to make out the defence pursuant to section 10(1D).
DECISION
The decision of the arbitrator dated 5 March 2010 is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of this appeal.
Michael Snell
Acting Deputy President
4 June 2010
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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