WAYNE LEE and TRANSPACIFIC INDUSTRIES PTY LTD
[2012] AATA 553
•24 August 2012
[2012] AATA 553
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/3497
Re
WAYNE LEE
APPLICANT
And
TRANSPACIFIC INDUSTRIES PTY LTD
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 24 August 2012 Place Perth The decision under review is affirmed.
..................[sgd]......................................................
S D Hotop, Deputy President
CATCHWORDS
COMPENSATION – employee of licensed corporation – applicant suffered compensable knee injury – applicant subsequently sustained ankle condition while travelling between place of residence and another place for purpose of receiving medical treatment for knee injury – ankle condition did not arise out of, or in course of, applicant's employment with respondent – ankle condition not suffered as result of medical treatment of knee injury - ankle condition not a compensable injury – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(3), s 5A(1) and s 6
CASES
Comcare v Mather (1995) 56 FCR 456
Commonwealth v Oliver (1962) 107 CLR 353
Gregory v Comcare Australia (1997) 72 FCR 196
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Kavanagh v Commonwealth (1960) 103 CLR 547
Repatriation Commission v Law (1981) 147 CLR 635Roncevich v Repatriation Commission (2005) 222 CLR 115
REASONS FOR DECISION
Deputy President S D Hotop
24 August 2012Introduction
Wayne Lee (“the applicant”), who is 46 years of age, was, at all material times, employed as a supervisor by Transpacific Industries Pty Ltd (“the respondent’).
In February 2011 the applicant made a claim for workers’ compensation in respect of an injury to his right knee, and the respondent accepted liability, pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), to pay compensation to the applicant in respect of an injury described as “right knee strain”.
On 30 May 2011 the applicant made a claim for workers’ compensation in respect of a condition affecting his “right ankle and lower leg” described as: “displaced right lateral fracture with widening of mortise”. In the claim form the applicant indicated that he had sustained that condition on 18 May 2011 at 5.40 pm when he “slipped on concrete floor” at the Auski Roadhouse where he had stopped for a “toilet break” while “returning from Transpacific/Comcare doctor’s visit in Port Hedland”. In response to the question : “What were you doing at the time you were injured …?”, he stated:
“ went to see doctor for Comcare and Transpacific regarding damaged right knee, got out for toilet break slipped and right knee could not support body causing me to fall.”
In response to the question: “What actually injured you …?”, he stated:
“ already had damaged right knee, when I slipped I had no power in leg which caused me to fall to floor”.
On 3 June 2011 a determination was made under the SRC Act, on behalf of the respondent, that the respondent was not liable to pay compensation to the applicant in respect of “Displaced right malleolar fracture with widening of mortise”, sustained on 18 May 2011.
On 9 August 2011, following a request by the applicant for a reconsideration of the abovementioned determination, a “reviewable decision” was made under s 62 of the SRC Act, on behalf of the respondent, affirming that determination.
On 30 August 2011 the applicant applied to the Tribunal for review of the abovementioned reviewable decision.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T22, pp 1–54) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·Exhibits A1 and A2 tendered by the applicant;
·Exhibits R1–R4 tendered by the respondent;
·the oral evidence of the applicant and of the following witnesses:
- Glenda Doole (who was called by the applicant); and
- Pamela Sullivan and Gary Vincent (who were called by the respondent).
The Applicant’s Evidence
The applicant confirmed that he had provided a “summary of evidence” to the Tribunal with his application for review and that its contents are true and correct.
The applicant’s “summary of evidence” states as follows:
“ I injured my knee at work in February 16th 2011 and was put on Compo for my knee as it happened at work.
3 months later I received an email from my OHSET Manager [Gary Vincent] telling me I am to attend a doctors appointment in Port Hedland, I live in Newman so that is around a 10 hour drive. I was told by Roger Fellows which is my manager in Newman that it’s to far for me to drive with my damaged knee and to get my partner who also works at the same place as myself to fillout a carers leave form and drive me up there and back in my work ute as instructed by my Manager. I attended the Doctor’s appointment that I was instructed to by Gary Vincent and on the way back to Newman around 200 KLMS from home we stopped into a roadhouse for a toilet break, I was using one crutch to get around with as the damaged knee was to sore to put much pressure on, as I took 2 steps away from the work ute I slipped on water or oil and my damaged knee couldn’t hold my balance and fell to the ground. I heard a loud crack as I landed onto my ankle and the pain was real bad so I wrapped a bag of ice around the ankle and headed for Newman.
As I got into mobile phone rang I Text my Manager and told him I am reporting the incident I had whilst travelling back from the Doctors they sent me to. The next day I rang my Manager and my OHSET Manager to report to them of my incident whilst coming back from there Doctors appointment they organised.
I filled out all the paperwork to make a separate claim with the CGU as Xrays showed that I had snapped the bone near my ankle. The CGU sent me back a letter saying they don’t believe Transpacific are liable. I sent them a letter saying I would like this heard by someone else. The CGU sent me another letter saying they will get another opinion and then I have just received another letter saying they don’t believe it was work related and that no-one from Transpacific sent me to the Doctors in Port Hedland.
The CGU have said I can write to you at AAT if I do not agree with there decision.
I cannot believe they are saying I was not sent to Port Hedland by work, please see the copy of the email work sent me advising me to see there Doctor of choice.
I was told to go there by Transpacific, I would not have fallen if I didn’t already have a damaged knee from a work incident as this was the reason I couldn’t keep my footing when I slipped.
…” (sic) (T22)
In examination-in-chief the applicant gave evidence to the following effect:
·he received an email from Gary Vincent saying that he “had to go to” a specialist in Port Hedland;
·he was to see the specialist in order to “get a better understanding of how bad [his] knee was”;
·Gary Vincent arranged the appointment with the specialist;
·the respondent did not arrange transport for him – he does not know why – instead, arrangements were made for his wife (Ms Doole) to drive him there;
·the specialist (Dr Whitewood) told him that his knee was “bad” and that he would refer him to his Perth surgery;
·Dr Whitewood told him that an MRI scan would be necessary and he gave him a medical certificate for a month off work;
·at that time his knee was “locked” and he “could not straighten it out or put pressure on it”;
·on the way home they stopped at the Auski Roadhouse for a toilet break and to get fuel but after switching off the ignition Ms Doole decided that they did not need any more fuel;
·Ms Doole handed him a crutch from the back of the ute;
·he started walking around the back of the ute and went to where the bowsers were and took a few steps heading towards the toilets when the crutch slipped on what he believed to be oil and he fell with his body weight onto his ankle and he experienced “great pain in the ankle”;
·Ms Doole and his daughter ran over to help him;
·his daughter picked the crutch up from the ground and put it in the back of the ute;
·his daughter went back to the Roadhouse to get some ice and Ms Doole then got some towelling from “the lady behind the counter” in the Roadhouse to wrap the ice around his ankle;
·the “lady in the Roadhouse” asked Ms Doole whether he had a fall;
·he was given no assistance at the Roadhouse either by staff or by customers;
·no-one came out of the Roadhouse at that time;
·at the time of his fall he was using one crutch, putting all his weight onto one side, and the crutch slipped and he fell because there was no “power” in the knee and he could not “hold [himself] up”.
In cross-examination the applicant gave evidence to the following effect:
·after injuring his right knee on 16 February 2011 he saw Dr Brockhoff on 17 February 2011 and, although Dr Brockhoff recommended that he have a CT scan and issued a referral for that purpose (Exhibit R1), no such appointment was made and no CT scan was performed;
·he saw Dr Odeke on 21 February 2011 and he was then certified as fit for light duties, working only from home;
·he can remember then doing work from home but cannot remember for how long;
·he also saw Dr Odeke on 25 February 2011 and was again certified fit for light duties but he is “pretty sure” that he was by then back working at the office;
·he saw Dr Green on 4 March 2011 and he was again certified fit for light duties;
·he then went on leave from 10 March 2011 to 10 April 2011;
·on 11 April 2011 he saw Dr Muthu who told him that he needed to have an MRI scan but he (the applicant) did not make an appointment to see Dr Whitewood;
·he has always been told not to book such medical appointments himself and that this is a matter for his employer;
·he does not recall whether Gary Vincent telephoned him before 27 April 2011 enquiring whether he had made an appointment to see Dr Whitewood;
·on 9 May 2011 he sent an email to Gary Vincent asking him for details of the appointment with Dr Whitewood, and on 10 May 2011 he received an email from Gary Vincent setting out those details;
·Garry Vincent was in charge of the matter and he was told that he had to attend medical appointments made for him;
·his wife was given the day off work on carer’s leave, and the use of the company car, for the purpose of driving him to Port Hedland to attend the appointment with Dr Whitewood on 18 May 2011;
·up until then he had been working in his office at the respondent’s premises;
·he did not go into the office on 18 May 2011 – they left for Port Hedland directly from their home and they travelled back from Port Hedland directly to their home;
·when they stopped at the Auski Roadhouse on the return journey, he got out of the car to go to the toilet and was using a crutch which slipped on oil or water on the ground and he fell and injured his ankle.
The applicant acknowledged that no reference to his using a crutch at the time of his fall is made in any of the following:
·a text message regarding the incident which he sent to his Manager, Roger Fellows, in the evening of 18 May 2011 after he had returned to Newman (see T15);
·statements from his wife (Glenda Doole) and his daughter (Marinda Lee), dated 19 May 2011, regarding the incident (see T6 and T5, respectively);
·his claim for compensation dated 30 May 2011;
·his request for a reconsideration of the determination of 3 June 2011 that the respondent was not liable to pay compensation to him (see T18);
and that the first reference by him to the use of a crutch in that incident appears in his statement to the Tribunal (lodged on 29 August 2011) in support of his application for review (set out in paragraph 9 above). He rejected the suggestion that he was not using a crutch at the time of his fall and that it was his foot which slipped on oil or some other foreign substance on the ground.
In re-examination the applicant explained that the reason he had not previously referred to his using a crutch when he fell on 18 May 2011 was that he had, by then, been using a crutch for three months and “didn’t think about it”. He reiterated that he was “definitely” using a crutch at the time of his fall on 18 May 2011. As regards the appointment for him to see Dr Whitewood on 18 May 2011, he said that the first he knew about it was when he received an email about it from Mr Vincent. He said that he thought that he was to attend the appointment as part of his return to work program. He explained that he did not make the appointment himself because it was his understanding that Mr Vincent, his return to work co-ordinator, “had full control”.
The Evidence of the Other Witnesses
Glenda Doole
Ms Doole said that she has been the applicant’s de facto partner for 27-28 years.
Ms Doole confirmed that she had made a handwritten statement, dated 19 May 2011, and that its contents are true and correct. That statement is as follows:
“ I Glenda Doole drove Wayne Lee to Port Hedland on the 18th May in the Transpacific work ute as he was requested by the company to see a Doctor Whitewood in Port Hedland due to hes damaged right knee he could not drive himself the trip being 9 hrs round trip. We left Port Hedland & half way back to Newman Pulled into Auski Roadhouse near the petrol bowser for a toilet break. Wayne had only taken a Few steps towards the toilet block when I saw hes Right leg fall underneath him & he crashed to the Ground. Wayne yelled with pain & as I bent down to try help him back up to get him in the ute he had turned very pale and was shaking, saying he heard tearing & a loud cracking noise in hes lower right leg my daughter ran in the Road-house & got a bag of ice which I wrapped all around he’s ankle Wayne was in a lot of pain & wanting pain killers urgently & with 2 hrs still to drive to Newman so I drove For Newman.” (sic) (T6)
Ms Doole also confirmed that she had signed a witness statement, dated 20 May 2012, for the purpose of this proceeding, and that its contents are true and correct. That statement is as follows:
“1. My name is Glenda Doole and I am the partner of the Applicant, Wayne Lee (‘Wayne’), in these proceedings.
2.On 18 May 2011 I drove Wayne to a medical appointment (to see Dr Whitewood) at the request of Wayne’s employer Transpacific.
3.The appointment was in respect to an injury sustained to Wayne’s right knee during the course of his employment.
4.Wayne was not able to drive himself to that appointment.
5.On the way home from the appointment we stopped at the Auski Roadhouse for a toilet break.
6.On exiting the vehicle I handed Wayne a crutch that he required the assistance on (sic) if he was to walk. He advised me that he was okay and that he just needed to stretch and get some movement in his legs.
7.I went to the public phone to make a phone call.
8.Whilst on the phone I observed Wayne walk slowly with his crutch to the toilet.
9.I saw the clutch (sic) slip away from him and he fell landing on his right leg. My daughter also saw this happen as she was walking from the toilet at this time.
10.I witnessed Wayne yelling in pain.
11.I told my daughter to grab the crutch and put it in the ute so that we could help Wayne back to the ute. I told my daughter to go and get a bag of ice.
12.We wrapped his ankle and headed to Newman.
13.No one at the Roadhouse offered any help at all and no staff members approached us.
14.Annexed hereto and marked ‘A’ (at page 4) is a diagram I have drawn setting out the location of the incident.” (Exhibit A2)
Ms Doole confirmed that, when she wrote her handwritten statement on 19 May 2011, she had a “clear recollection” of the incident referred to in that statement which had occurred on the previous day. She said that, when they arrived at the Roadhouse, she asked the applicant whether he wanted his crutch, he said yes, and she then got the crutch from the back of the ute and handed it to him. She said that she then went over to the public telephone near the entrance to the Roadhouse to call her mother. She said that she was watching the applicant while she was talking on the telephone and she saw him walk very slowly around the back of the ute, cross over the divider, take a couple of steps and then slip. Asked to describe how he slipped, she said that the crutch gave way from underneath him and he fell down onto his right leg.
In cross-examination Ms Doole said that she understood that the respondent had requested that the applicant see Dr Whitewood (as referred to in her abovementioned handwritten statement and para 2 of her abovementioned witness statement) because that was the impression that the applicant had given to her. She agreed that, in her handwritten statement of 19 May 2011, she did not mention that the applicant was using a crutch when he fell, but she reiterated that he was using a crutch at that time. As regards para 11 of her witness statement of 20 May 2012, she rejected the suggestion that she had falsely included that paragraph in order to counter Ms Sullivan’s statement (see paragraph 19 below) that she had seen crutches in the back of the ute and that the applicant was not using crutches when he fell.
In re-examination Ms Doole explained that she had not referred, in her handwritten statement, to the applicant’s using a crutch when he fell because he had already been on crutches for a while and seeing him on crutches was “an everyday thing”.
Pamela Sullivan
Ms Sullivan confirmed that she had signed a witness statement, dated 29 March 2012, for the purpose of this proceeding, and that its contents are true and correct. That statement is as follows:
“ …
2.I am a counterhand at the Auski Roadhouse, and I was working at the Roadhouse on 18 May 2011.
3.On that day, I was standing outside the Roadhouse having a cigarette break. A man and two women were filling up their ute with petrol.
4.The man was sitting in the ute and one of the women, I assume she was his wife, was in the shop paying for their petrol.
5.The man got out of the ute and went to cross the divider between the petrol pumps. He stepped up onto the divider and fell.
6.He was not using crutches at the time, but I noticed that there were a set of crutches in the back of the ute.
7.I didn’t actually see him fall, but I was standing outside at the time.
8.One of the women came over to help him up. I heard her say words to the effect of ‘where’s your crutches’. She was not very old so I assume she was his daughter.
9.I remember thinking to myself ‘you silly bugger!’
10.I’m not sure why he needed to get out of the ute in the first place, but he could have gone around the divider if he was having problems with his knee.
11.After he fell, one of the women came into the Roadhouse and asked for some ice for the man’s leg. She told me that they had just come from the hospital.
12.After they left, my manager, Sue Matherson, went outside to see what he might have slipped on. There was a small puddle of water on the ground where he fell.” (Exhibit R2)
In examination-in-chief Ms Sullivan said that, on 18 May 2011, while she was having a cigarette, she noticed a man walking with a limp between the bowsers and then fall down. She said that he was not using anything to help him walk at the time. Asked when she noticed the crutches in the back of the ute, she said that it was when one of the women asked him, after he had fallen, where his crutches were. She added that, at the time, she thought it was silly of him not to use crutches if he had a sore leg and was limping.
In cross-examination Ms Sullivan gave evidence to the following effect:
·at the relevant time she was standing at the end of the verandah of the Roadhouse, having gone there “just for a quick smoke”;
·she did not see the applicant get out of the car but she saw him limping;
·she did not see him fall because she had turned away but she then saw him on the ground when a woman asked him if he was OK;
·she was about 15 feet away from him when he fell;
·she noticed crutches in the back of the applicant’s ute when a woman asked him where they were;
·they were “just normal wooden crutches”;
·she asked if they were OK but the woman did not answer.
Gary Vincent
Mr Vincent confirmed that he had signed a witness statement, dated 25 January 2012, and a supplementary witness statement, dated 29 March 2012 for the purpose of this proceeding, and that their contents are true and correct.
Mr Vincent’s witness statement of 25 January 2012 is as follows:
“…
2.I am the Occupational Health and Safety Manager, Pilbara Region, for Transpacific Industries Group Limited (TPI).
3.As part of my duties I am the return to work coordinator for Wayne Andrew Lee.
4.Wayne had an apparent right knee work related injury on 16 February 2011, for which he claimed workers’ compensation.
5.This injury was reported 16/02/2011 to his TPI Manager. Wayne went to the Doctor without TPI knowledge and unescorted on the 17/02/2011 and was treated by Doctor Brockhoff.
6.Wayne had 2 more visits to Dr Joseph Odeke 21/02/2011 and 25/02/2011 and Dr Leslie Green on the 4/03/2011 where he was given a certificate Fit for restricted duties till the 10/04/2011, this was Wayne’s last Doctor’s appointment till 10/04/2011.
7.Wayne had holidays booked in Exmouth from 10/03/2011 through till 10/04/2011.
8.After Wayne returned from his holiday he was reassessed by his treating Doctor Muthu who recommended he be assessed by an Orthopaedic specialist Dr Colin Whitewood.
9.After Wayne’s claim for workers’ compensation in relation to his knee injury Dr Manickam Muthu recommended that he be assessed by a specialist orthopaedic surgeon, Dr Colin Whitewood.(sic)
10.Please find attached and marked ‘A’, referral from Dr Muthu to Dr Whitewood, dated 11 April 2011.
11.Wayne did not make an appointment to see Dr Whitewood. As the appointed Return to Work Coordinator for Wayne Lee’s claim I took the proactive approach to call Dr Whitewood’s Practice to check whether any person had made an appointment as per Dr Muthu’s referral. I was advised that there was no appointment booked, I then asked when the next available appointment could be made, there was an available date 18th May in South Hedland, that time was secured and Wayne was communicated with the time and place of this appointment. (This appointment was made following a referral from his treating doctor Dr Muthu and was not a TPI request.)
12.Nothing was happening with Wayne’s claim.
13.On 10 May 2011, I sent an email to Wayne advising him the details of the appointment.
14.Wayne’s partner Glenda worked for TPI at that stage. She no longer works for TPI.
15.Roger Fellows Manager of the Newman Branch arranged for Glenda, (Wayne’s partner who was employed by TPI at the time) to have a day of compassionate leave so that she could take Wayne to his appointment with Dr Whitewood and we gave her use of a company car for ease of transportation and in the interest of our injured employee.
16.Wayne attended the appointment with Dr Whitewood on 18 May 2011 in South Hedland as referred by his treating Doctor Muthu.
17.Wayne reported to Roger Fellows that on the way home from the appointment he slipped over at a road house and hurt his ankle.
18.Wayne submitted a claim for workers’ compensation for the injury to his ankle.” (Exhibit R3)
Mr Vincent’s supplementary witness statement of 29 March 2012 is as follows:
“ …
2.This witness statement is provided in addition to my previous witness statement dated 25 December (sic) 2012.
3.This information is about Wayne’s appointment with Dr Whitewood on 18 May 2011.
4.Wayne was referred to Dr Whitewood for his knee. The purpose of the referral was to get an MRI/arthroscopy as suggested by Dr Muthu, and an opinion on whether Wayne would need surgery.
5.No-one seemed to be doing anything about the referral, and it looked to me like it was being sat on.
6.I rang Wayne to ask whether he had made an appointment with Dr Whitewood. I am not sure what date I made the call.
7.Wayne said to me words to the effect of ‘I thought that was your job.’
8.I asked Wayne whether he would mind travelling to Hedland for the appointment, and told him that we would provide him with a company car. He said he didn’t mind.
9.I did not tell Wayne that he had to attend the appointment, or that it was a requirement of his employment.
10.I rang Dr Whitewood’s offices to check whether anyone else had made an appointment for Wayne. They told me that no appointment had been made.
11.As no appointment had been booked, I asked whether I could make one for Wayne. I said words to the effect of ‘I need to make an appointment for one of our employees. He has a referral from Dr Muthu for an MRI/arthroscopy of his knee.’
12.I did not ask for Dr Whitewood to do a rehabilitation assessment, or send me any confirmation that Wayne had attended the appointment, like a medical certificate.
13.Booking the appointment for Wayne was part of my role as rehabilitation coordinator. I regularly booked these types of appointments for other workers.
14.I wanted to look after Wayne and help him get better.
15.On 9 May 2011, Wayne emailed me asking for the time and place of his scans. Please find attached and marked ‘GVI’ Wayne’s email to me dated 9 May 2011.
16.On 10 May 2011, I emailed Wayne with the date and time of the appointment. Please find attached and marked ‘GV2’ my email to Wayne dated 10 May 2011.
17.After the appointment, I became aware that Dr Whitewood had issued Wayne with a medical certificate at the appointment. Please find attached and marked ‘GV3’ the medical certificate issued by Dr Whitewood on 18 May 2011.
18.I had not asked Dr Whitewood to issue a medical certificate, and I had not asked Wayne to get one while he was there.
19.I’m not sure why Dr Whitewood issued Wayne with a medical certificate at the appointment.
…” (Exhibit R4)
In cross-examination Mr Vincent said that, having enquired with Dr Whitewood’s secretary whether the applicant had made an appointment, and having been informed that the applicant had not done so, he then went ahead and made the appointment “in the best interests of the injured employee”. He said that, as the appointment was at Dr Whitewood’s rooms in Port Hedland and because there is no direct aeroplane flight between Newman and Port Hedland, he asked the applicant whether it would be inconvenient for him to travel to Port Hedland by road in the company ute with a driver, and the applicant said “no”. He said that the duration of the road trip between Newman and Port Hedland was about four hours each way.
In response to a question from the Tribunal, Mr Vincent said that it was his understanding that the cost of the applicant’s appointment with Dr Whitewood was covered by the workers’ compensation payable to the applicant in respect of his accepted knee injury.
Additional Material
A report of Mr Colin Whitewood, Orthopaedic Surgeon, dated 25 May 2011, addressed to Dr Muthu, is included in the T Documents (T10). That report states as follows:
“ I reviewed Wayne today whose MRI scan of his knee has fortunately come back showing that he has torn just one of the bundles of his ACL of his right knee and has some subchondral oedema around consistent with some trabecular micro fractures, but his knee was settling down very nicely.
After I finished reviewing him in Port Hedland on the 18th of May 2011 he unfortunately started to walk with some weight through the right leg utilising a single crutch. He unfortunately slipped on a small patch of oil suffering a plantar flexion inversion injury to his right ankle. He heard an immediate crack and his daughter who was with him went and got some ice and he got immediate ice onto it. It has been too sore to walk on since then.
He has pain on both the medial and lateral sides of his ankle and an x-ray obtained today confirms a displaced lateral malleolar fracture. He is exquisitely tender around the medial side and I do not think we have much option other than to go in and fixed (sic) this displaced fracture and restore his ankle joint mortis.
We will get him into hospital today so we can get his leg elevated and operate on his ankle tomorrow.”
The Relevant Legislation
Pursuant to s 14 and Part VIII of the SRC Act, the respondent is liable to pay compensation in accordance with that Act “in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”.
The word “injury” is relevantly defined in s 5A(1) of the SRC Act to mean “an injury … suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment”.
Section 6 of the SRC Act, as in force at all material times, provided as follows:
“ 6 Injury arising out of or in the course of employment
(1)Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a)as a result of an act of violence that would not have occurred but for the employee’s employment or the performance by the employee of the duties or functions of his or her employment; or
(b)while the employee was at the employee’s place of work, including during an ordinary recess, for the purposes of that employment; or
(c)while the employee was temporarily absent from the employee’s place of work undertaking an activity:
(i) associated with the employee’s employment; or
(ii) at the direction or request of the Commonwealth or a licensee; or
(d)while the employee was, at the direction or request of the Commonwealth or a licensee, travelling for the purpose of that employment; or
(e)while the employee was at a place of education, except while on leave without pay, in accordance with:
(i) a condition of the employee’s employment by the Commonwealth or a licensee; or
(ii) a request or direction of the Commonwealth or a licensee; or
(iii) the approval of the Commonwealth or a licensee; or
(ea)while the employee was travelling between the employee’s place of work and a place of education for the purpose of attending that place in accordance with:
(i) a condition of the employee’s employment by the Commonwealth or a licensee; or
(ii) a request or direction of the Commonwealth or a licensee; or
(iii) the approval of the Commonwealth or a licensee; or
(f) while the employee was at a place for the purpose of:
(i)obtaining a medical certificate for the purposes of this Act; or
(ii) receiving medical treatment for an injury; or
(iii)undergoing a rehabilitation program provided under this Act; or
(iv) receiving a payment of compensation under this Act; or
(v)undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or
(vi)receiving money due to the employee under the terms of his or her employment, being money that, under the terms of that employment or any agreement or arrangement between the employee and the Commonwealth or a licensee, is available, or reasonably expected by the employee to be available, for collection at that place; or
(g)while the employee was travelling between the employee’s place of work and another place for the purpose of:
(i)obtaining a medical certificate for the purposes of this Act; or
(ii)receiving medical treatment for an injury; or
(iii)undergoing a rehabilitation program provided under this Act; or
(iv)undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act.
(1A) For the purposes of this section:
(a)a journey from a place of residence is taken to start at the boundary of the land where the place of residence is situated; or
(b)a journey to such a place of residence is taken to end at that boundary.
(1B)If an employee owns or occupies a parcel of land contiguous with the land on which the employee’s residence is situated, the boundary referred to in subsection (1A) is the external boundary of all of the contiguous parcels of land if treated as a single parcel.
(1C)For the purposes of paragraph (1)(d), travel between the employee’s residence and the employee’s usual place of work is taken not to be at the direction or request of the Commonwealth or a licensee.
(2)In paragraph (1)(d), the reference to the employee travelling does not include a reference to travelling to or from a place mentioned in paragraph (1)(e) or (f).
(3)Subsection (1) does not apply where an employee sustains an injury:
(a) while at a place referred to in that subsection; or
(b) during an ordinary recess in his or her employment;
if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.”
Section 4(3) of the SRC Act provides:
“ For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a)compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b)it was reasonable for the employee to have obtained that medical treatment in the circumstances.”
The phrase “medical treatment” is defined in s 4(1) of the SRC to mean (inter alia):
“(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
…
(f)the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or
…”
The Issues
It is common ground that the applicant sustained a right ankle condition described as a “displaced right malleolar fracture with widening of mortise” at the Auski Roadhouse on 18 May 2011. The issues for the Tribunal’s determination, as raised by the parties’ submissions, are whether that condition:
·is to be treated as having arisen out of, or in the course of, the applicant’s employment with the respondent, pursuant to s 6 of the SRC Act;
·is an “injury arising out of, or in the course of,” the applicant’s employment with the respondent, within the meaning of s 5A(1)(b) of the SRC Act; and/or
·was suffered by the applicant “as a result of medical treatment of an injury”, within the meaning of s 4(3) of the SRC Act.
If any of those issues is determined in the affirmative, the applicant’s right ankle condition will be a compensable “injury” within the meaning, and for the purposes, of the SRC Act.
Analysis
Is the applicant’s right ankle condition to be treated as having arisen out of, or in the course of, his employment with the respondent, pursuant to s 6 of the SRC Act?
The relevant provisions of s 6 of the SRC Act, for present purposes, are paras (d), (f) and (g) of subs (1), together with subs (2).
Although, pursuant to para (d) of s 6(1), an injury is to be treated as having arisen out of employment if it was sustained “while the employee was, at the direction or request of the Commonwealth or a licensee, travelling for the purpose of that employment”, it is provided in subs (2) of s 6 that the reference, in para (d) of s 6(1), to the employee travelling “does not include a reference to travelling to or from a place mentioned in” para (e) or para (f) of s 6(1).
In the present case, the applicant sustained the right ankle condition while travelling between a place at which he had been for the purpose of “receiving medical treatment for an injury”, within the meaning of subpara (ii) of para (g) of s 6(1) – namely, Mr Whitewood’s surgery in Port Hedland where he had been for the purpose of receiving medical treatment for his compensable right knee injury – and his residence in Newman. The question which arises, for the purpose of determining whether para (g) of s 6(1) is satisfied in this case, is whether the applicant’s residence was his “place of work”, within the meaning of para (g), at the time when he sustained the right ankle condition, namely, on 18 May 2011. Although the applicant gave evidence that he was working from home on light duties, in accordance with Dr Odeke’s medical certificate of 21 February 2011, he said that he was “pretty sure” that, when he next saw Dr Odeke on 25 February 2011, he was by then back working at his office at the respondent’s premises. He also said that, up until 18 May 2011, he had been working in his office at the respondent’s premises. Having regard to that evidence, and in the absence of any evidence to the contrary, the Tribunal finds that, when the applicant sustained the right ankle condition on 18 May 2011, his residence was not his “place of work” within the meaning of para (g) of s 6(1) of the SRC Act.
Accordingly, the Tribunal determines that para (g) of s 6(1) of the SRC Act is not satisfied in this case.
In respect of para (d) of s 6(1) of the SRC Act, the Tribunal finds that the applicant sustained the right ankle condition on 18 May 2011 while he was travelling “from a place mentioned in” para (f) of s 6(1), within the meaning of subs (2) of s 6, namely, Mr Whitewood’s surgery in Port Hedland, being a place where he had been for the purpose of “receiving medical treatment for an injury” within the meaning of subpara (ii) of para (f) of s 6(1). That being the case, pursuant to subs (2) of s 6, para (d) of s 6(1) cannot be satisfied in this case.
Although that finding makes it unnecessary further to consider para (d) of s 6(1), the Tribunal, for the sake of completeness, notes that it does not accept the applicant’s submission that, at the relevant time, he was, for the purposes of para (d) of s 6(1), travelling for the purpose of his employment “at the direction or request of” the respondent on the basis that he had attended Mr Whitewood’s surgery at the direction of his return to work co-ordinator, Gary Vincent. The Tribunal accepts Mr Vincent’s evidence that he did not direct the applicant to attend the appointment with Mr Whitewood on 18 May 2011 or inform him that it was a requirement of his employment that he attend that appointment. The Tribunal is also satisfied, having regard to Mr Vincent’s evidence, that he did not request the applicant to attend that appointment. The Tribunal is satisfied that Mr Vincent’s relevant actions went no further than to arrange that appointment for the applicant. It was then a matter for the applicant as to whether or not he attended that appointment. It may be that the applicant perceived that he had been directed or requested by Mr Vincent to attend that appointment or that it was otherwise a requirement of his employment that he do so, but such perception is, of itself, insufficient to satisfy para (d) of s 6(1) of the SRC Act. The Tribunal, furthermore, is satisfied that Mr Vincent did not act in such a way as could reasonably cause the applicant to have such perception.
Accordingly, the Tribunal determines that para (d) of s 6(1) of the SRC Act is not satisfied in this case.
As regards para (f) of s 6(1) of the SRC Act, although the applicant had attended Mr Whitewood’s surgery in Port Hedland “for the purpose of … receiving medical treatment for an injury” within the meaning of subpara (ii) of that paragraph, he did not sustain the right ankle condition “while [he] was at [that] place” within the meaning of that paragraph; instead, he sustained that condition at the Auski Roadhouse between Port Hedland and Newman. Plainly, he was not at the Auski Roadhouse for any of the purposes referred to in para (f) of s 6(1). Accordingly, the Tribunal determines that para (f) of s 6(1) of the SRC Act is not satisfied in this case.
It is common ground that none of the other provisions of s 6 of the SRC Act is relevant in this case, and the Tribunal so determines.
Conclusion
The Tribunal concludes, therefore, that the applicant’s right ankle condition is not to be treated as having arisen out of, or in the course of, his employment with the respondent, pursuant to s 6 of the SRC Act.
Did the applicant’s right ankle condition otherwise arise out of, or in the course of, his employment with the respondent, within the meaning of s 5A(1)(b) of the SRC Act?
In s 5A(1)(b) of the SRC Act the word “injury” is relevantly defined to mean an injury “arising out of, or in the course of,” the employee’s employment. Although s 6(1) of the SRC Act sets out various circumstances in which an injury to an employee is to be treated as having arisen out of, or in the course of, the employee’s employment, that subsection is expressed not to limit the circumstances in which such an injury may be treated as having arisen out of, or in the course of, such employment.
In the present case the Tribunal understands it to be common ground, and in any event finds on the basis of the evidence before it, that the applicant’s attendance on Mr Whitewood on 18 May 2011:
·was not for the purpose of his undergoing a medical examination required by the respondent under s 57 of the SRC Act or arranged in connection with a rehabilitation or return to work program under s 36 of the Act;
·was solely for the purpose of his receiving medical treatment in relation to his existing right knee injury for which the respondent was liable to pay compensation to him pursuant to s 16 of the SRC Act.
The present matter for the Tribunal’s determination is whether the right ankle condition, which the applicant sustained at the Auski Roadhouse during the return journey from Mr Whitewood’s surgery in Port Hedland to his residence in Newman on 18 May 2011, is a condition “arising out of, or in the course of,” his employment with the respondent, within the meaning of s 5A(1)(b) of the SRC Act.
Did the applicant’s right ankle condition “aris[e] out of” his employment with the respondent?
The question whether an injury or condition sustained by an employee “[arose] out of” the employee’s employment, within the meaning of s 5A(1)(b) of the SRC Act, is one of causation – that is whether the employee’s sustaining the injury or condition was causally related to the employee’s employment. An injury or condition sustained by an employee, which is causally related to the employee’s employment, may be regarded as having “aris[en] out of” that employment even though the causal relationship is not immediate, proximate or direct, provided that it is not fanciful, tenuous or too remote: Repatriation Commission v Law (1981) 147 CLR 635 at 647–648; Roncevich v Repatriation Commission (2005) 222 CLR 115 at 126.
In the present case, although the applicant’s employment with the respondent may be regarded as a “but for” cause of his sustaining his right ankle condition, that condition cannot thereby reasonably be regarded as sufficiently causally related to his employment such that it can be said that it “[arose] out of” that employment. Nor, in the Tribunal’s opinion, can the applicant’s right ankle condition reasonably be regarded as a sequela of his employment-related right knee condition (as submitted by the applicant).
Accordingly, the Tribunal finds that the applicant’s right ankle condition did not “aris[e] out of” his employment with the respondent, within the meaning of s 5A(1)(b) of the SRC Act.
Did the applicant’s right ankle condition “aris[e] … in the course of” his employment with the respondent?
The question whether an injury or condition sustained by an employee “[arose] … in the course of” the employee’s employment, within the meaning of s 5A(1)(b) of the SRC Act, involves consideration as to whether there was a temporal connection, rather than a causal connection, between the injury or condition and the employment: Kavanagh v Commonwealth (1960) 103 CLR 547; Commonwealth v Oliver (1961) 107 CLR 353. In Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 Mason CJ, Deane, Dawson and McHugh JJ said (at 483):
“ … The course of employment is ordinarily perceived as commencing when the employee starts work in accordance with his or her ordinary or overtime hours of work and as ending when the employee completes his or her ordinary or overtime hours of work.
… For the purposes of workers’ compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work. Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home. On the other hand, there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work. Where, for example, as in Danvers [Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529], an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work. An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location or in a permanent locality.”
Their Honours then enunciated the following principle (at 484):
“ … it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment ‘and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen’: Danvers at 537.”
Their Honours (at 483) had referred, by way of example, to the case of an “employee who is encouraged by his or her employer to see a doctor after working hours” and stated that such employee “is not ordinarily within the course of employment if injured while visiting the doctor”.
In the present case the applicant sustained his right ankle condition on a day, namely, 18 May 2011, when he was off work for the purpose of travelling to and from Port Hedland, and in the course of such travelling on that day. In the Tribunal’s opinion, that ankle condition was (adopting the abovementioned analysis in Hatzimanolis) sustained by the applicant in an “interval between two discrete periods of work” – namely, the interval between his finishing work on the 17 May 2011 and his next starting work after 18 May 2011 (the Tribunal notes that he was certified by Mr Whitewood on 18 May 2011 as totally unfit for work for 30 days from that date) – rather than in an “interval or interlude occurring within an overall period or episode of work”. That being the case, the applicant’s right ankle injury is not ordinarily to be regarded as having been sustained in the course of his employment with the respondent.
The question then arises as to whether the particular circumstances in which the applicant’s right ankle condition was sustained were such that it may properly be regarded as having been sustained in the course of his employment, notwithstanding that it was sustained in an “interval between two discrete periods of work”.
The applicant submitted that the respondent – specifically, Mr Vincent – encouraged or induced the applicant to attend the appointment with Mr Whitewood in Port Hedland on 18 May 2011 and, in doing so, must have known that, because of the long distance (approximately 400 kilometres) between Port Hedland and Newman (where the applicant resided), a stop at the Auski Roadhouse (where the applicant’s right ankle condition was sustained) midway through that journey would have been necessary. The applicant submitted that, on that basis, the applicant’s right ankle condition should be regarded as having been sustained in the course of his employment with the respondent.
The Tribunal has previously found (see paragraph 38 above) that Mr Vincent did not direct or request the applicant to attend the appointment with Mr Whitewood in Port Hedland on 18 May 2011. The question raised by the applicant’s submissions, however, is whether Mr Vincent encouraged or induced the applicant to attend that appointment.
In Comcare v Mather (1995) 56 FCR 456 the Federal Court of Australia (Kiefel J), after referring to (inter alia) the abovementioned principle enunciated in Hatzimanolis at 484 (see paragraph 49 above), relevantly stated (at 462-463):
“ In my view ‘encouragement’ is not to be taken as of narrow meaning and limited to some positive action and in specific terms which might lead the employee to undertake a particular activity or attend at a particular place. The two particular cases which their Honours in Hatzimanolis were concerned with in this context, Commonwealth v Oliver (1962) 107 CLR 353 and Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 involved, respectively, an expectation of presence coupled with a recognised practice and making available facilities for an employee’s use. The facts in Hatzimanolis did not require the Court to discuss in greater detail what was encompassed by the phrase ‘induced or encouraged’. To be said to have, expressly or impliedly, induced or encouraged an undertaking or presence at some location could refer to, by way of example only, requirements, suggestions, recognition of practices, fostering of participation, or providing assistance and may include the exercise of discretion or choice on the part of the employee. Further attempt at definition would be fruitless. In each case, the question will be whether the attendance at the place at which or the undertaking in which the employee is involved when injured in an interval falls within the ambit of statements, acts or conduct made by the employer and what may be said to logically arise from them. And in each case, importantly, they must be viewed in the background of the particular employment and the circumstances in which the employer is then placed.”
In the present case, the Tribunal is prepared to accept that, by reason of Mr Vincent’s “proactively” making the appointment for the applicant to see Mr Whitewood in Port Hedland on 18 May 2011 and informing the applicant of the details of that appointment, and Mr Fellows’ arranging for Ms Doole to be granted compassionate leave on 18 May 2011 and the use of a company car for the purpose of her driving the applicant to Port Hedland to attend that appointment, the respondent impliedly encouraged, if not induced, the applicant to attend that appointment.
Although the respondent may be regarded as having impliedly encouraged the applicant to attend the appointment with Mr Whitewood in Port Hedland on 18 May 2011, it does not, however, necessarily follow that the applicant’s right ankle condition, which was sustained in the course of a journey undertaken by him for the purpose of attending that appointment, was sustained “in the course of” his employment with the respondent. In Gregory v Comcare Australia (1997) 72 FCR 196 the Federal Court of Australia (Cooper J) said (at 201-202):
“ The logical corollary of the approach adopted by the majority in Hatzimanolis is that, ordinarily, an injury which occurs in an interval between two discrete periods of work, even if the injury occurs at a place or in the course of an activity which the employer induced or encouraged the employee to spend the interval in or doing, will not be an injury which occurs in the course of employment. This is because … the end of the discrete period of work breaks any temporal connection between the employment and the place at which or activity during which the injury is sustained.
The example given by the majority in Hatzimanolis of the employee who is encouraged by his or her employer to see a doctor after working hours illustrates the point. Whilst it might be said that an injury sustained by the employee while visiting the doctor is in some way causally connected to his or her employment, there can be no question of a temporal connection.
That is not to say that an injury occurring in an interval between two discrete periods of work can never be one occurring in the course of employment. In any given case, there may be a feature or features of the particular facts and circumstances which establishes a sufficient temporal connection between the place or activity and the employment.”
In the present case - which the Tribunal regards as involving an “interval between two discrete periods of work” - the Tribunal is not satisfied that there are any “features of the particular facts and circumstances” which establish a temporal connection between the journey undertaken by the applicant on 18 May 2011 for the purpose of his attending the appointment with Mr Whitewood, in the course of which he sustained the right ankle condition, and his employment by the respondent. Nor (as previously stated) is the Tribunal satisfied that the applicant’s sustaining the right ankle condition is sufficiently causally related to his employment with the respondent (see paragraph 47 above).
Accordingly, the Tribunal finds that the applicant’s right ankle condition did not “aris[e] … in the course of” his employment with the respondent, within the meaning of s 5A(1)(b) of the SRC Act.
Conclusion
The Tribunal concludes, therefore, that the applicant’s right ankle condition is not an “injury arising out of , or in the course of,” his employment with the respondent, within the meaning of s 5A(1)(b) of the SRC Act.
Was the applicant’s right ankle condition “suffered by [him] as a result of medical treatment of an injury”, within the meaning of s 4(3) of the SRC Act?
The evidence and submissions in relation to this issue centred on the matter of whether or not the applicant was using a crutch when he sustained the right ankle condition on 18 May 2011.
The applicant submitted that he was using a crutch at that time and that that crutch constituted “medical treatment”, as defined in s 4(1) of the SRC Act (being an “aid” or an “appliance” within the meaning of para (f) of that definition), which had been reasonably obtained by him in respect of his compensable right knee injury (thereby satisfying the conditions set out in paras (a) and (b) of s 4(3) of the SRC Act). He further submitted that he sustained the right ankle injury as a result of the crutch slipping on oil or water on the ground at the Auski Roadhouse thereby causing him to fall heavily onto his right ankle. Accordingly, he submitted, his right ankle condition was suffered by him “as a result of medical treatment” (namely, the crutch) of his compensable knee injury and must itself, pursuant to s 4(3) of the SRC Act, “be taken to be an injury”, for the purposes of that Act.
There is conflicting evidence before the Tribunal as to whether the applicant was using a crutch at the time when he sustained the right ankle condition. The applicant and Ms Doole testified that he was using a crutch at the time, whereas Ms Sullivan testified that he was not. As regards the weight that should be given to the evidence of those respective witnesses, the Tribunal comments as follows:
·the Tribunal regards the evidence of Ms Sullivan as independent and objective, whereas it regards the evidence of the applicant and Ms Doole as self-serving;
·the omission of any mention of a crutch in the applicant’s report of the incident by text message to his Manager, Roger Fellows, in the evening of 18 May 2011 (see T15), or in the contemporaneous written statements of Ms Doole and Ms Lee dated 19 May 2011 (see T6 and T5, respectively), or in the applicant’s compensation claim form dated 30 May 2011 (see T14), or in the applicant’s (undated) request for a reconsideration of the determination of 3 June 2011 (see T18) causes the Tribunal to have reservations regarding the credibility of the oral evidence of the applicant and Ms Doole that the applicant was using a crutch at the time when he sustained the right ankle condition on 18 May 2011;
·on the other hand, Mr Whitewood, in his report of 25 May 2011 (T10) – only one week after the date on which the applicant sustained the right ankle condition – referred to the applicant’s “utilising a single crutch” when he injured his right ankle on 18 May 2011 (information which was presumably reported to him by the applicant), and the applicant, in his (undated) letter to the Tribunal (T22), lodged in connection with his application for review on 29 August 2011, referred to his “using one crutch” when he fell and injured his right ankle on 18 May 2011.
Owing to the inconclusive state of the evidence, the Tribunal has reservations as to whether the applicant was using a crutch when he sustained the right ankle condition on 18 May 2011. However, having regard to the reasoning in paragraphs 62–65 below, it is unnecessary for the Tribunal to make a finding on that matter.
Assuming (without finding) that the applicant was using a crutch at the time when he sustained the right ankle condition on 18 May 2011, the critical issue to be considered is whether that right ankle condition was “suffered by [him] as a result of medical treatment of” his compensable right knee injury, within the meaning of s 4(3) of the SRC Act.
The Tribunal accepts that the applicant had obtained a crutch or crutches but there is no evidence before the Tribunal regarding the circumstances in which he obtained the crutch or crutches – for example, whether he did so on medical advice or on his own initiative. Nor is there evidence before the Tribunal as to whether the applicant claimed or received compensation, pursuant to s 16 of the SRC Act, for the cost of the crutch or crutches on the basis that it/they constituted reasonable medical treatment obtained by him for his compensable right knee injury. The Tribunal is, nevertheless, prepared to assume that the supply of a crutch or crutches to the applicant constituted “medical treatment” as defined in s 4(1) of the SRC Act – specifically, in para (f) of that definition – and, furthermore, that it was “reasonable for [him] to have obtained that medical treatment”, within the meaning of s 4(3)(b) of the SRC Act.
The evidence before the Tribunal regarding the applicant’s using a crutch at the Auski Roadhouse on 18 May 2011 and his sustaining the right ankle condition at that time may be summarised as follows:
·Mr Whitewood’s report of 25 May 2011 (T10) relevantly states:
“ … he unfortunately started to walk with some weight through the right leg utilising a single crutch. He unfortunately slipped on a small patch of oil suffering a plantar flexion inversion injury to his right ankle. …”;
·the applicant’s letter to the Tribunal, lodged on 29 August 2011 (T22), relevantly states:
“ … on the way back to Newman around 200 klms from home we stopped into a roadhouse for a toilet break, I was using one crutch to get around with as the damaged knee was to (sic) sore to put much pressure on, as I took 2 steps away from the work ute I slipped on water or oil and my damaged knee couldn’t hold my balance and fell to the ground. I heard a loud crack as I landed onto my ankle …”;
·the applicant’s oral evidence at the hearing was to the effect that Ms Doole handed him a crutch and he started walking around the back of the ute to the petrol bowsers and then took a few steps towards the toilets when the crutch slipped on what he believed to be oil and he fell with his body weight onto his ankle;
·Ms Doole’s witness statement dated 20 May 2012 (Exhibit A2), as confirmed in her oral evidence at the hearing, relevantly states (at paras 8–9):
“ 8. Whilst on the phone I observed Wayne walk slowly with his crutch to the toilet.
9. I saw the crutch slip away from him and he fell landing on his right leg. …”;
·in her oral evidence Ms Doole said that she saw the applicant take a couple of steps and then slip, and she described his slipping as involving the crutch giving way from underneath him and he fell down onto his right leg.
Assuming (without finding) that the applicant was using a crutch at the Auski Roadhouse on 18 May 2011 and that, as he was walking slowly on that occasion, the crutch slipped on oil or water or other foreign substance on the ground, resulting in his falling and sustaining the right ankle condition, the Tribunal is not satisfied that it can properly be said, in those circumstances, that that right ankle condition was suffered by the applicant “as a result of medical treatment” of his compensable right knee injury, namely, the supply of the crutch to him. Although the supply of the crutch to the applicant may be regarded as a “but for” cause of his falling and thereby sustaining the right ankle condition, it cannot reasonably be regarded as an operative cause of the applicant’s sustaining that condition such that it can be said, for the purposes of s 4(3) of the SRC Act, that he sustained that condition “as a result of” being supplied with the crutch. On the abovementioned assumed factual scenario, the operative cause of the applicant’s sustaining the right ankle condition was the crutch slipping on oil or water or other foreign substance on the ground while being used by him, resulting in his fall, rather than the supply of the crutch to him (being the “medical treatment” within the meaning of s4(3) of the SRC Act).
Finding
The Tribunal finds, therefore, that the applicant’s right ankle condition was not “suffered by [him] as a result of medical treatment of an injury”, within the meaning of s 4(3) of the SRC Act.
Conclusion
The ultimate conclusion of the Tribunal is that the right ankle condition sustained by the applicant at the Auski Roadhouse on 18 May 2011 is not a compensable “injury” within the meaning, and for the purposes, of the SRC Act.
Decision
For the above reasons the decision under review is affirmed.
I certify that the preceding 68 (sixty- eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop. ............[sgd D Brodie]..................................................
Administrative Assistant
Dated 24 August 2012
Dates of hearing 26, 27 June 2012 Representative of the Applicant Ms I Siljanoska Solicitors for the Applicant Slater & Gordon Counsel for the Respondent Mr B Kelly Solicitors for the Respondent HBA Legal
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