Byrnes v Workers' Compensation Regulator [2018] ICQ 4

INDUSTRIAL COURT OF QUEENSLAND CITATION: Byrnes v Workers’ Compensation Regulator [2018] ICQ 004 PARTIES: LYNETTE BYRNES (appellant) v WORKERS COMPENSATION REGULATOR (respondent) FILE NO/S: C/2017/7 PROCEEDING: Appeal DELIVERED ON: 21 May 2018 HEARING DATE: 22 May 2017, Further Submissions received 23 August 2017 and 7 September 2017 MEMBER: Martin J, President ORDER/S: The Appeal is dismissed. CATCHWORDS: WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE - where appellant was attending a meeting of the Independent Education Union and was injured – where appellant was employed by Brisbane Catholic Education – where an arrangement existed between the Union and employer where the appellant was released from ordinary duties on a number of school days to attend Union meetings – where the arrangement allowed for the employees to be paid their ordinary wage with the Union to make payments for the costs associated with the employment of a replacement teacher - where appellant lodged an application for compensation under employer’s policy, which was rejected – where appellant lodged an application under Union’s policy, which was accepted – where appellant now appeals rejection of application lodged under employer’s policy – whether the appellant suffered an injury within the meaning of section 32 of the Workers’ Compensation and Rehabilitation Act – whether the appellant’s attendance at the meeting was in the course of employment, or something incidental to that work – whether the circumstances gave rise to an implied authorisation to engage in the activity of attending the Union meeting – whether there was evidence that the employment was a significant contributing factor to the appellant’s injury CASES AND LEGISLATION Workers Compensation and Rehabilitation Act 2003 Comcare v Mather (1995) 56 FCR 456 Comcare v PVYW (2013) 250 CLR 246 -- 1 of 13 -- 2 Kavanagh v The Commonwealth (1960) 103 CLR 547 Pearson v Fremantle Harbour Trust (1929) 42 CLR 320 Newberry v Suncorp Metway Insurance Ltd [206] 1 Qd R 519 Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260 Westrupp v BIS Industries Limited (2015) 238 FCR 254 APPEARANCES: L S Reidy instructed by Holding Redlich for the appellant S P Gray directly instructed by the respondent [1] On 30 October 2015, Lynette Byrnes (the appellant) attended a meeting of the Independent Education Union of Australia (the Union) at the Christie Centre in Central Brisbane. While at the meeting she fell and fractured her right shoulder. There was no evidence to explain why she fell. [2] The Regulator conceded that the appellant was a “worker” for the purposes of the Workers’ Compensation and Rehabilitation Act 2003 (the Act) and that she had sustained a “personal injury” as defined in the Act. At all relevant times, the appellant was a teacher and was employed by Brisbane Catholic Education (BCE). [3] Following the injury, the appellant lodged an application for compensation under her employer’s policy (the BCE policy). WorkCover rejected that application. On the day after that rejection, the appellant lodged an application under a policy held by the Union (the Union policy). That was accepted and benefits were paid. About a month later, the appellant unsuccessfully sought a review of the decision which rejected her claim under the BCE policy. [4] The appellant appealed the Regulator’s decision and now appeals the Commission decision which confirmed the Regulator’s decision. Grounds of appeal [5] Of the original grounds of appeal, the appellant only pursued the following three: (a) the Commissioner failed to consider the correct question – was the appellant’s attendance at the meeting in the course of employment? (b) the Commissioner applied the wrong test for determining whether the appellant had been induced or encouraged to attend the meeting, (c) the Commissioner erred by failing to determine whether the employment was a significant contributing factor to the injury. -- 2 of 13 -- 3 Other issues [6] A number of other issues arose in this appeal. The appellant was, effectively, seeking to obtain compensation pursuant to a policy held by her employer when she had already obtained compensation pursuant to a policy held by the union. The appellant sought to deal with this by calling evidence to demonstrate that the compensation available to her under the union policy was inferior to that available under the BCE policy. The regulator did not object to the additional evidence sought to be advanced, save for one exhibit which related to an assertion that the appellant continues to suffer from ongoing pain. Questions also arose as to the appellant’s standing to bring an appeal against a rejection of a claim under one policy when a claim under another policy has been allowed. If the benefits under each policy are the same then a real question does emerge. But the issue which was the subject of the real contest between the parties was: did the appellant suffer an injury within the meaning of s. 32 of the Act? As that was at the heart of the controversy I will deal with it first. [7] In order to consider the Commission’s decision, it is necessary to set out some of the facts which were before it. The agreement between BCE and the Union [8] The Commissioner found (at [186]) the following matters were not contentious: • the appellant had been a teacher with BCE since 1974; • the appellant had been at St Mary’s College since 1976; • at the time of injury she held the position of a Middle Leader with her direct report to the Deputy Principal; • the appellant was a member of the Union and at the relevant time the holder of two positions: - Branch Executive Member - elected by a state-wide ballot of Union members; and - Council Member - elected by a ballot of Moreton District Union members; • an arrangement existed between the Union and BCE where members of the Branch Executive/Council would be released from ordinary duties on a number of school days in a calendar year to attend Union meetings; • the arrangement allowed for the employees to be paid by BCE their ordinary wage entitlements with the Union to make a payment in full for the costs associated with the employment of a replacement teacher on the days in question; • the Union would issue correspondence at the commencement of the school year where upon the school would be advised of dates of Executive and Council meetings for the upcoming year; -- 3 of 13 -- 4 • in correspondence (dated 9 February 2015) the Union informed the Principal of St Mary’s College that the meeting dates for which Byrnes would be required to attend Union meetings were a mix of employee and employer time, identifying the dates as: - Employee time Sunday 8 February 2015 Sunday 15 March 2015 Sunday 24 May 2015 - Employer time Friday 17 July 2015 Friday 28 August 2015 Friday 30 October 2015; • the correspondence further confirmed that in terms of the cost of a replacement teacher for the appellant, if required would be “the usual practice” of the employer to invoice the Union with details of the supply teacher (name, classification etc.) and the cost, with the full cost being reimbursed to the employer by the Union; • just prior to 30 October 2015 verbal approval was given by the College to the appellant to be released on that date for the purposes of her attendance at three Union meetings at the Christie Conference Centre in Brisbane being the: - QIEU Council meeting; - Independent Education Union of Australia Branch Executive meeting; and - QIEU Annual General Meeting; • whilst in attendance at the Christie Centre on 30 October 2015 the appellant fell, resulting in the accepted personal injury; • the appellant underwent a medical procedure the costs of which were met by WorkCover Queensland against a Contract of Insurance policy held by the Union. [9] After considering those and other matters, the Commissioner concluded: “[198] I am satisfied that the arrangement regarding salary for teachers released to attend Union meetings, reached between the parties in 1994 and still in operation as at 30 October 2015 allowed for the teachers in question to attend Union meetings in their capacity as elected officers of the Union with the cost of attendance borne by the Union through the reimbursement of the full costs associated with the engagement of relief teachers.” -- 4 of 13 -- 5 [10] He further held: “[215] On consideration of the evidence, material and submissions before the proceedings the following findings are made: • Byrnes was for the purposes of s 11 of the Act, at all relevant times a worker; • Byrnes on 30 October 2015 suffered a personal injury being that of a fracture to the right shoulder, more particularly, a right proximal facture of the humerus; • the personal injury did not arise out of, or in the course of, her employment with BCE on the basis that the activities engaged in by Byrnes on 30 October 2015 were not something which was concomitant of or reasonably incidental to her employment to do that work. In Commonwealth of Australia v Lyon, Deane J stated: ‘Injury in the course of employment means an injury is sustained while the worker is engaged in the work he or she is employed to do or in something which is concomitant of or reasonably incident to his employment to do that work (Kavanagh v Commonwealth (1960) 103 CLR 547 at 559; Commonwealth v Oliver, supra, at 358). The course of employment is a temporal concept and it is unnecessary that there be any casual connection between the work which the employee employed to do and the injury which sustains (Kavanagh v Commonwealth, supra, at 555, 570; Commonwealth v Oliver, supra, at 359, 362). The scope of what is within it depends upon ‘the sufficiency of the connection between the employment and the thing done by the employee’ which ‘cannot but remain a matter of degree, in which time, place and circumstances as well as practice, must be considered together with the conditions of employment’ (per Dixon J, Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22 at 29, and see generally Stephen J Bill Williams Pty Ltd v Williams [1972-73] ALR 303; 126 CLR at 158-9.’; and • consequently the employment was not a significant contributing factor to the injury.” -- 5 of 13 -- 6 Section 32 [11] Section 32 of the Act relevantly provides: “(1) An “injury” is personal injury arising out of, or in the course of, employment if – (a) for an injury other than a psychiatric or psychological disorder – the employment is a significant contributing factor to the injury;” [12] Section 32(1)(a) of the Act makes the primary factor for consideration whether the employment was a significant contributing factor to the injury. The requirement is preceded by another condition, namely, that the injury arise out of, or in the course of, employment. Those words are to be regarded as alternative conditions not cumulative. It was explained in this way by Fullagar J in Kavanagh v The Commonwealth 1 “[T]he effect of requiring a causal connexion between employment and injury is always attributed to the words ‘out of’ and not to the words ‘in the course of’. (The words ‘out of’ do indeed import causation: the words ‘in the course of’ do not.) The conclusion seems inevitable that the main object of the changing of the conjunction was to eliminate the necessity of finding such a causal connexion. If there was such a causal connexion, the injury was to be compensable even though it did not occur while the worker was engaged in his employment or anything incidental to his employment. If, on the other hand, the injury occurred in the course of the employment, it was to be compensable even though no causal connexion could be found between it and the employment. And it necessarily follows, I think, that the words ‘arising in the course of his employment’ ought not to be regarded as meaning ‘anything more or less than arising while the worker is engaged in his employment’. For I can find no tenable half-way house between this view and the view that the words in question have the same meaning as the words ‘arising out of his employment.” (emphasis added) [13] A similar definition of “injury” is contained in s 4 of the Workers Compensation Act 1987 (NSW)2. It provides that an injury means a “personal injury arising out of or in the course of employment.” The proper construction of the definition was considered by McColl JA in Tudor Capital Australia Pty Limited v Christensen3: “[326] The use of the disjunctive in s 4 means that “two quite different tests are involved, one or other of which is sufficient to be satisfied for the purposes of s 9.” The first limb, “arising out of”, requires there to be a causal element between the employment and the injury. The second limb, “in the course of employment”, involves a “temporal element and does not of itself contain a causative element.” It refers to “an injury sustained while the worker is engaged in the work which he is employed to do or in something incidental to that work”. As soon as the 1 (1960) 103 CLR 547 at 558. 2 Section 9A of the Act provides that no compensation is payable in respect of an injury unless the employment concerned “was a substantial contributing factor to the injury”. 3 [2017] NSWCA 260. -- 6 of 13 -- 7 employee “ceases to be so engaged the time span ends and with it the course of employment.””(citations omitted, emphasis added) [14] The attendance by the appellant at the union meeting was not work which she was employed to do, nor was it something incidental to that work. The injury did not occur while the appellant was engaged in the work for which she was employed to do nor in something incidental to that work. Was the appellant’s attendance at the meeting in the course of employment? [15] On the hearing of the appeal, this ground was subsumed into a larger question of whether this was an “interval” case. At the hearing, the appellant argued her case on alternative bases: that attendance at the meeting was an authorised paid attendance in the ordinary course of employment or, if not, the attendance at the meeting was an activity in an interval that was authorised, induced or encouraged by BCE. [16] The appellant argued that the Commissioner erred by concentrating on the business being conducted at the meeting and contrasting that with the appellant’s teaching duties. It was contended that the focus on the occasion and business of the meeting led to a failure to pose the correct question and, thus, constituted an error of law. [17] Matters which are relevant to the issues which have to be decided include: (a) the nature and circumstances of the agreement between BCE and the union which underlie the ability of the appellant to attend the union meeting, and (b) the custom and practice which had arisen over the many years of the agreement being in place. [18] Under the agreement, the Union was responsible for the payment of any relief teacher required to fill the place of a teacher attending a union meeting. The teacher who attended such a meeting, though, continued to be paid by BCE for that day and was to receive all the other usual employment entitlements as if the day had been an ordinary day of work. [19] The appellant argued that the circumstances gave rise to an implied authorisation to engage in the activity of attending the union meeting. It was further argued that being authorised to engage in an activity when paid by the employer is an obvious case of an activity in the course of employment. [20] At this point, it must be observed that, while the appellant was being paid by BCE, she was not being paid to engage in the activity of attending the meeting. The history of the negotiations between BCE and the union demonstrate that the payment by BCE was, in effect, to make the arrangement easier for both BCE and the union. The union had agreed to pay for a replacement, if a replacement was necessary. In other words, one of the main considerations for the agreement was that BCE was not to be “out of pocket” by reason of the teacher attending a union meeting and that the functions of the teacher who attended such a meeting were to be fulfilled by a relief teacher. -- 7 of 13 -- 8 [21] The appellant argued that this was “implied authorisation” and that, as such, it was a complete answer to whether the activity was in the course of employment. To support that argument, the appellant referred to Pearson v Fremantle Harbour Trust4. The headnote adequately sets out the relevant facts: “Following a practice or custom known to his employer, a worker left the job upon which he was working to go from one part of his employer's premises to another during his employer's time, in order to procure hot water for tea for the midday meal of himself and his fellow-workers; he was doing this for the purpose of more conveniently supplying them with the hot water which the employer habitually provided, generally as a matter of statutory obligation, sometimes without that compulsion but in like case. Whilst on the way to the employer's boiler containing the hot water, he was injured by a motor-car on a road on the employer's premises; and he claimed compensation from his employer under the Workers' Compensation Act 1912-1924 (W.A.) in respect of the injuries sustained by him.” [22] After considering a number of authorities, the High Court (Knox CJ, Rich and Dixon JJ) said: “We think that the result of these authorities is to show that the words “arising in the course of the employment” describe a condition which is satisfied if the accident happens while the workman is doing something in the exercise of his functions although it is no more than an adjunct to or an incident of his service. Upon the facts of this case the workman (the appellant) was going from one part of his employer's premises to another during hours of labour for which he was paid and when he was bound to obey his employer's lawful commands, and he was doing so for the purpose of more conveniently supplying to a gang of men that which the employer habitually provided, generally as a matter of statutory obligation, sometimes without that compulsion, but in like case. The convenience served was not only that of the gang because it facilitated the supply of water, a thing which the respondent was bound to do when work was “at a ship” and which it did in the same way although the ship was not yet, or no longer was, alongside. Adapting and applying to this case the language of Viscount Haldane in Upton v. Great Central Railway Co. [1], that the appellant should have been at the Quay walking on the road to the “cook-house” “fell within the conditions on which he was employed. The accident happened while he was doing something that was incidental to his employment. It did not occur merely during a period in which he was in the employment of the respondents.” He was “doing something which in contemplation of law is part of his service.” … It was contended that the custom of obtaining hot water in this manner was not shown to be one to which the respondent was a party. But it was the conventional way adopted by workmen and employer in combination for fulfilling the obligation laid by the award on the latter to supply hot water. The practice could not exist without the knowledge and concurrence of the officers or foremen of the corporation and therefore the course pursued by the appellant must be taken to be 4 (1929) 42 CLR 320. -- 8 of 13 -- 9 authorized by the respondent as something proper to be done by or in respect of his service.”5 [23] In Pearson the court noted that the incidental task was being performed “during hours of labour for which he was paid and when he was bound to obey his employer's lawful commands”.6 Further, while the court refers to the practice not being able to exist without the “knowledge and concurrence of the officers or foremen of the corporation and therefore the course pursued by the appellant must be taken to be authorized by the respondent”7 it did so in light of the earlier statements to the effect that the work was being done in the exercise of the employee’s functions. [24] While the appellant was being paid by BCE, it was not contended that she was bound to obey BCE’s lawful commands while at the meeting. All that the appellant had was the permission of BCE not to attend work in order that she might attend the union meeting. The attendance was not something which was connected with her employment nor was it part of her service. Is this an “interval” case? [25] The Commissioner approached this issue by considering what was said by the High Court in Comcare v PVYW8 and then referring to the dictionary definitions of “induce” and “encourage”. The appellant argues that the Commissioner erred by: (a) not recognising that inducement or encouragement can be implied, and (b) not applying the test set out in Comcare v Mather9. [26] The Commissioner was correct to apply the test set out in Comcare v PVYW. It is to the decision which one looks to find the guiding principles. While Comcare v Mather is a very helpful examination of the decision in Hatzimanolis v ANI Corporation Ltd10, it is PVYW which establishes the general principles to be applied: “[38] The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next inquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential inquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle 5 At 329-330. 6 At 330. 7 At 330. 8 (2013) 250 CLR 246. 9 (1995) 56 FCR 456. 10 (1992) 173 CLR 473. -- 9 of 13 -- 10 becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.” [27] Although the Commissioner did not specifically refer to the question of whether or not inducement or encouragement could be implied he did consider the actions of the employer in light of the arrangement between BCE and the union. He came to the conclusion that the conduct of BCE had been simply to facilitate a leave of absence requested by both the union and the appellant to allow for her participation in activities associated with her role in the union.11 He concluded that there was “no evidence of the employer having acted in a manner whereby they led, persuaded, influenced or caused Byrnes’ attendance at the Union meetings but had at best complied with an arrangement of some twenty-one years standing by authorising a leave of absence for Byrnes to undertake activities related to her Union role.”12 In arriving at that finding, he should be taken to have considered all the circumstances leading to the appellant’s attendance at the meeting. It was a finding that was open to him on all the evidence. Significant contributing factor [28] The appellant argues that the only finding made by the Commissioner about “significant contributing factor” appears at [215] of the reasons. That is set out above. It is contended that the issue was not addressed at all in the decision on the “interval” case. There is not, though, much which could be said by the Commissioner about this point. He noted the submissions of the parties at [90], [142] and [168], and referred to the issue by reference to the activities in which the appellant was engaged at the relevant time [215]. The onus was always on the appellant to demonstrate that s 32 applied to her. If the evidence called does not support the claim or, as in this case, there is no evidence about the event which caused the injury, then an applicant will have great difficulty in discharging the onus. [29] The appellant argued that the Commissioner was required, at least, to consider the exigencies of the employment and the circumstances surrounding the employment to determine whether they contributed in a significant way. The problem with this contention is that the appellant did not provide any evidence of the circumstances of the fall which gave rise to the injury. The mere fact that an injury occurs at a “place” does not require that there be a conclusion that the employment was a significant contributing factor. There was nothing to suggest that either the nature of what that the appellant was doing at the relevant time or the physical circumstances of the place at which the meeting was held had anything to do with the injury. 11 At [220]. 12 At [222]. -- 10 of 13 -- 11 [30] This question was considered by the Full Court of the Federal Court of Australia in Westrupp v BIS Industries Limited13. In that case the court considered the application of PVYW and said: “[45] That is not to say that the circumstances of the injury are not relevant. Their Honours went on (at [38]): 38 … For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential inquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. … and: 38 … When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? … [46] It is clear from what follows in the majority judgment that the idea of an injury which occurs “at and by reference to a place” may require close examination on the facts of the particular case. In PVYW itself, mere presence at the place where the injury occurred was insufficient to establish that the injury occurred “by reference to” the place (although it occurred “at” the place (see at [45])). By contrast, the majority held (at [40]): 40 … An injury occurs at a place when the circumstance of the injury is referable to the place. The circumstances of Danvers, which was the basis of this criterion of liability, make this plain. They explain why the mere presence of an employee at a place in circumstances where an injury is associated with that place may be sufficient to bring that injury within the course of the employee’s employment. [47] The explanation continued (at [44]): 44 Attention must then be directed to the circumstances of the employee’s death in Danvers. He died because the van in which he was required to live caught fire. His death occurred by reference to that place and that circumstance. The place where an employee is required to be assumes particular importance when it is the cause of an injury or death. This is not to inject notions of causation into the application of the principle, just as the statement that an injury occurred as a result of being engaged in an activity does not involve such notions. To identify the relevant connection does not raise any question about causation. It simply identifies the circumstance in 13 (2015) 238 FCR 254. -- 11 of 13 -- 12 which the injury is suffered. It is that circumstance which must be the subject of the employer’s inducement or encouragement.” [31] There was close examination of some of the facts in this case but there could not be the usual close examination of the injury because there was no evidence about the circumstances of the injury. As was noted in Westrupp and PVYW, mere presence at the place where the injury occurred is insufficient to establish that the injury occurred “by reference to” the place. That is the main problem with which the appellant failed to grapple in the presentation of the case before the Commission. [32] The requirement that employment be a significant contributing factor was also discussed by Keane JA in Newberry v Suncorp Metway Insurance Ltd.14 He emphasised the need to bear in mind the requirement of connection between employment and injury: “[41] … I should also observe in passing that the fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been “a significant contributing factor to the injury”. To read s 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases “arising out of employment” or “in the course of employment”. [42] Further, there is no warrant in the language of s 32 of the WCRA for reading the words “if the employment is a significant contributing factor to the injury” as lessening the stringency of the requirement that the injury “arise out of the employment”, as was suggested in the course of argument on the appeal. It is clear, as a matter of language, that the words “if the employment is a significant contributing factor to the injury” are intended to be a requirement of connection between employment and injury additional to each of the requirements that the injury occur in the course of employment or arising out of the employment. It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former.” (emphasis added, citations omitted) [33] In the absence of any evidence which established any connection between the appellant’s employment and her injury, the conclusion reached by the Commissioner was inevitable. The exigencies of the appellant’s employment did not require that she be an official of the union and there was no evidence to suggest that there was any other practical requirement of her employment which would result in her having to attend the meeting. In any event, in the absence of evidence about the cause or nature of the fall suffered by the appellant there could be no examination of it in the light of the exigencies of employment. 14 [2006] 1 Qd R 519. -- 12 of 13 -- 13 Conclusion [34] The appellant has not demonstrated any appellable error in the reasoning of the Commissioner. [35] During the hearing of the appeal I raised with counsel matters related to the standing of the appellant and the circumstances concerning the relationship between the Union policy and what was sought by the appellant – compensation under the BCE policy. As I have found that the Commissioner did not err, it is unnecessary to deal with those matters. [36] The appeal is dismissed. -- 13 of 13 --