Cooper v Q-COMP [2010] ICQ 48

CITATION: Shirley Joy Cooper AND Q-COMP (C/2010/38) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial magistrate Shirley Joy Cooper AND Q-COMP (C/2010/38) PRESIDENT HALL 26 November 2010 DECISION [1] Ms Cooper is a registered nurse. At all material times she was employed as a registered nurse by the Lutheran Church of Australia Queensland District (the Employer), at Tabeel Nursing Home (the Nursing Home), which is located at 27 Ambrose Street, Laidley in the State of Queensland. The Nursing Home, I should add, was owned and operated by the Employer. [2] In the approach to the festive season of 2007, Ms Cooper volunteered to assist with the preparation and conduct of a Christmas party which the Employer proposed to conduct for residents and their families at the Nursing Home. In fact, Ms Cooper did assist in the preparation for and conduct of the function. The Statement of Agreed Facts conveniently summarises the work performed by Ms Cooper as follows: "29.The Appellant drove herself to and from the premises on the day of the function. 30. During the function there were staff on paid duty including a registered nurse and 4 other nurses in the Nursing home, a registered nurse and 2 other nurses in the hostel and the kitchen staff who stayed in the kitchen and prepared the food for the function. 31. Two cleaners employed by the employer started their usual shift late (at 11am) so they worked until 7pm to also assist at the function. 32. Some of the residents from the nursing home stayed at the home If they did not want to go to the party and consequently some of the rostered staff had to stay with them. 33. There was more work than usual that day as the residents had to be dressed and readied for the function. 34. The Appellant understood that she was to help as required including pushing wheel chair bound guests and gathering the residents for the function. 35. The tables and chairs for the function were set up on the previous Friday by the facility's handyman and other staff, not including the Appellant. 36. During the course of the function, the Appellant carried out the following tasks: (a) Decorating tables; (b) Putting out paper plates, cups, cutlery and serviettes; (c) Running food from the kitchen to one of the three Bain Maries; (d) Cleaning up paper plates, cups, cutlery and serviettes; (e) Stacking plastic chairs; (f) Disassembling tables; (g) Interacting with residents and their families. 37. The Appellant assisted a number of other people in dismantling approximately 50 tables and 450 chairs. 38. The tables that were assembled and disassembled by the Appellant had dimensions of approximately 3 1/2 feet wide & 8 feet long. 39. The Appellant was instructed by Roland Weir, the Manager of the facility in how to assemble and disassemble the tables. -- 1 of 4 -- 2 40. The Appellant was engaged in assisting at the function between the hours of 3 p.m. and 9 p.m. 41. On the day of the function, after the tables and chairs were packed away, the Appellant assisted a resident called George with her colleague Donna Vetheer to be lifted off the floor and back on tho [sic] his bed after he had slipped off the bed. 42. The Appellant so assisted the resident by using a mechanical lifter.". [3] It must be emphasised that Ms Cooper was not remunerated for her efforts and did not expect to be remunerated for her efforts. In that respect, Ms Cooper was in a comparable position to church members who assisted in making a success of the Christmas party. (Another similarity was that, like the church volunteers, Ms Cooper wore an outfit with a Christmas theme.) However, Ms Cooper's position differed from that of the church volunteers in that at all material times, she and the employer were parties to a contract of service. I reject the submission that each of the Employer and Ms Cooper had stepped outside the employment relationship. Whilst Ms Cooper was not performing her normal duties under her contract of service the contract remained extant. Ms Cooper had a duty to attend for work in accordance with her roster and the Employer had an obligation to accept her services. Ms Cooper's fiduciary duties remained intact. The case is unlike each of Eldridge v Kemblawarra Child and Family Centre1 and Zaronias v Papaiani2. In each of those cases the contract of service had ceased to exist. Accepting that Laengst v Healesville High School Council and Ors3 recognises that an employee may also be characterised as a volunteer for the purposes of Division 6 of the then Victorian Education Act, the issues in this matter are whether Ms Cooper was a "worker" for the purposes of the Workers' Compensation and Rehabilitation Act 2003 (the Act) and the application of s. 32(1) of the Act which provides: "An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.". [4] Whether or not Ms Cooper was a volunteer for other purposes, she was a party to a contract of service and a "worker" within the meaning of s. 11 of the Act. It is not contentious that Ms Cooper has suffered from back pain and sciatica since 1996. Her activities on 16 December 2007 exacerbated her pre-existing condition. It is common ground that Ms Cooper suffered a "personal injury" for the purposes of s. 32 of the Act. What is in issue is whether the personal injury is "work-related". [5] It is not suggested that Ms Cooper was working her ordinary roster. Ordinarily, Ms Cooper worked seven and three-quarter hours per day, three days per week on the morning shift, on a rotating roster. She was certainly not rostered for work at the Christmas Party. Neither, save in the incident involving George, was Ms Cooper performing her normal duties. Assistants in nursing and nurses' aides would normally have performed tasks of the genre performed by Ms Cooper. (Registered nurses were rostered on during the Christmas party to discharge Ms Cooper's normal role.) However, it has long been accepted that the concept of "course of employment" is not confined to the actual performance of the work which the worker is engaged to perform but includes whatever is incidental to the performance of the work, compare Humphrey Earl Ltd v Speechley4 at 133 per Dixon CJ. For many years whether a particular activity was incidental to the performance of work was determined by inquiring whether the worker was doing something the worker was "reasonably required, expected or authorised to do, in order to carry out his actual duties", compare Henderson v The Commissioner of Railways5at 294 per Dixon CJ (but see Kavanagh v The Commonwealth6 at 133 per Dixon CJ.) However, in Hatzimanolis v ANI Corporation Ltd7, the High Court revisited the category of case in which a worker is injured in an interval between discrete periods of actual performance of duties. At 482 per Mason CJ, Dean, Dawson and McHugh JJ said: "Beneficial as the Henderson-Speechley test has proved to be in the law of workers' compensation, its formulation no longer accurately covers all cases of injury which occur between intervals of work and which are held to be within the course of employment. A finding that a worker was doing something 'in order to carry out his duties' at the time he sustained injury is in many cases simply fictitious. Consequently, the rational development of this area of law requires a reformulation of the principles which determine whether an injury occurring between periods of actual work is within the course of the employment so that their application will accord with the current conception of the course of employment as demonstrated by the recent cases, particularly the decisions of this Court in Oliver and Danvers. 1 Eldridge v Kemblawarra Child and Family Centre [1999] NSWCA 395 2 Zaronias v Papaiani [2002] NSWCA 207 3 Laengst v Healesville High School Council and Ors [1995] VCC 17 4 Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 5 Henderson v The Commissioner of Railways (WA) 1937 58 CLR 281 6 Kavanagh v The Commonwealth (1951) 84 CLR 126 7 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 -- 2 of 4 -- 3 A striking feature of the recent cases which have held that an injury occurring in an interval between periods of actual work was within the course of employment is that in almost all of them the employer has authorised, encouraged or permitted the employee to spend his time during that interval at a particular place or in a particular way. However, it would be an unacceptable extension of the course of employment to hold that an employee was within the course of employment whenever the employer had authorised, encouraged or permitted the employee to spend the time during an interval between periods of actual work at a particular place or in a particular way. That formulation would cover not only the case of the 'lunchtime' injury, as in Oliver, and the case of the railway worker, as in Danvers, but also many cases involving injuries occurring during intervals between daily periods of work which could not fairly be regarded as within the course of employment. Thus, an employee who is encouraged by his or her employer to see a doctor after working hours is not ordinarily within the course of employment if injured while visiting the doctor, although the case would come within such a formulation. 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.". [6] On its material facts, Hatzimanolis v ANI Corporation Ltd8 was a case dealing with workers engaged to perform work in remote areas for lengthy periods of time who, of necessity, reside in purpose-built local accommodation when not performing the tasks for which they are employed. However, as cases such as Van Haefton v Caltex Oil (Australia) Pty Ltd9 demonstrate, Hatzimanolis v ANI Corporation Ltd op. cit. also indicates that it is appropriate to depart from the approach in Humphrey Earl Ltd v Speechley10 and Henderson v The Commissioner of Railways11, where a course of authority warrants such a departure. [7] Here, Ms Cooper's participation was not merely authorised or expected. It was sought. Further, the employer used monthly meetings of employees and the Communication Book used for communication between shifts to seek staff volunteers. The intangible benefit to the employer exceeded the benefit relied upon in Van Haefton v Caltex Oil (Australia) Pty Ltd op. cit. In that case, the employer acted to improve staff morale and social interaction. Here, the event went to their relationship between the facility and its patients and (importantly) their relatives. The case is also stronger than each of Clancy v Department of Public Health12 and Wolmar v Travelodge Australia Limited13. In the later case, the function was conducted merely to generate goodwill. Here, the function was conducted as an integral aspect of the employer's business venture over a period of years. In Clancy v Department of Public Health14, the patients were mere spectators. Here the patients and their relatives were participants. Kop v Home for Incurables15 , is plainly distinguishable. In that case the employer did no more than acquiesce in a staff member taking a patient on an outing. [8] One can infer that Ms Cooper shared her employer's view that patient care should be holistic. She may have regarded her participation as a job well done. Those inferences cannot take Ms Cooper beyond the scope of s. 32(1) of the Act. Professional employees commonly derive satisfaction from performance of the tasks which they are engaged to perform and activities incidental thereto. A finding that Ms Cooper's personal injury arose in the course of her employment does not involve distinguishing the staff volunteers from the church volunteers. It involves recognising an existing distinction between the two categories; viz., one category has a contract of service with the employer; the other does not. [9] The Statement of Agreed Facts summarises the earlier history of the matter now before the Court: "46.The Appellant as a volunteer made a claim on the Employer's Insurance policy with ACE Insurance Limited under claim Number 502-650-5732 ('the claim'). 47. The Appellant received compensation payments under the claim in respect of her back injury. 48. The Appellant's claim under Claim Number 502-650-5732 was terminated by correspondence from ACE Insurance Limited dated 3 June 2008 on the grounds that:- 'the possible disc bulge at L4/5 level is attributable to a pre-existing degenerative condition and not to the above dated incident. He believes that this incident exacerbated the pre-existing condition and that this exacerbation has now subsided.' 8 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 9 Van Haefton v Caltex Oil (Australia) Pty Ltd BC 9508527 10 Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 11 Henderson v The Commissioner of Railways (WA) 1937 58 CLR 281 12 Clancy v Department of Public Health (1962) NSWR2 13 Wolmar v Travelodge Australia Limited (1975) 8 ACTR 11 14 Clancy v Department of Public Health (1962) NSWR2 15 Kop v Home for Incurables (1970) SASR 139 -- 3 of 4 -- 4 49. On 22 January 2008 the Appellant lodged an Application for Compensation with WorkCover Queensland ('WorkCover'). 50. On 31 January 2008 WorkCover rejected the Application by way of written correspondence. 51. On 6 May 2008 Shine Lawyers corresponded with WorkCover in relation to a personal injury claim, described as an aggravation of disc herniation to L4/5, requesting that the Insurer confirm that there would be no refund owing upon settlement of the Appellant's claim. 52. On 13 May 2008 the Appellant lodged a Notice of Claim for Damages under the Personal Injuries Proceedings Act 2002. 53. On 21 October 2008 Shine Lawyers corresponded with WorkCover again in respect of a personal injury claim for an aggravation of disc herniation to L4/5 and requested that the Insurer provide reasons for the decision to reject the Appellant's application for compensation on 31 January 2008. 54. On 23 February 2009 the Appellant lodged an application for Review with the Respondent. 55. By Reasons for Decision dated 19 March 2009 the Respondent's Review Unit confirmed WorkCover's decision to reject the application.". Ms Cooper appealed to the Industrial Magistrate at Toowoomba. By a decision of 31 March 2010 delivered the same day, the Industrial Magistrate dismissed the appeal. The penultimate paragraph was: "Similarly I find that the Appellant's injury did not arise out of or during the course of her employment, and as such it cannot be said that the employment was a significant contributing factor to the injury.". [10] For the reasons exposed above, I am satisfied that Ms Cooper's "personal injury" occurred in the course of her employment for the purposes of s. 32(1) of the Act. I am informed that the matter has been conducted throughout on the basis that if Ms Cooper is successful on that point, there is no further or outstanding issue about whether the employment was a "significant contributing factor" to the "personal injury" for the purposes of s. 32(1) of the Act. [11] The Order of the Court is that the decision and orders of the Industrial Magistrate are set aside. In lieu of the order of the Industrial Magistrate, I Order that the decision of Q-COMP, confirming the decision of WorkCover Queensland, be set aside and that a decision accepting Ms Cooper's claim be substituted. Dated 26 November 2010. D.R. HALL, President. Released: 26 November 2010 Appearances: Mr J. Harper instructed by Shine Lawyers for the Appellant. Mr P. O'Neill directly instructed for the Respondent. -- 4 of 4 --