Comcare: accepted injury while standing in a meeting

Scully and BIS INDUSTRIES LTD (Compensation) [2007] AATA 185

Senior Member John Sosso

The applicant was employed as a truck driver on a “fly-in fly-out” full-time basis with the respondent who provided high payload off-road load and haul solutions for mining and resources companies. The applicant claimed that one or more of the trucks caused excessive jarring, bouncing and jolting resulting in lower back pain.

Importantly, the applicant did not report his concerns with the seating in the trucks or report the mechanism of injury to his treating general practitioner. Rather, the applicant stated that the onset of pain occurred while standing during breakfast.

Relevantly, s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “Act”) provides:

Compensation for injuries

(1)  Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

(2)  Compensation is not payable in respect of an injury that is intentionally self-inflicted.

(3)  Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.

In 2014, the applicant lodged a Worker’s Compensation Claim Form, but a decision was made not to pay compensation under s 14 of the Act as the evidence suggested it was the standing at breakfast which exacerbated the injury.

The applicant sought review of that decision, however the decision was affirmed in 2015. The findings of the second decision further stated that as the applicant had lodged prior hazard reports, he was familiar with the reporting process. Further, the reasons suggested that the applicant’s perceived issues with the seating arose only after being stood down from employment pending investigation.

Issues and consideration

The applicant contended that he suffered an injury pursuant to s 5A(1)(a) or 5A(1)(b) of the Act which was contributed to a significant degree by his employment. The respondent contended that there was no injury, but to the extent the applicant had an injury, it was not a result from the applicant’s employment.

As to the injury under s 5A(1)(a), Senior Member John Sosso was not satisfied that the applicant suffered jarring and jolting such as to aggravate his pre-existing condition. The reasons for this conclusion [124] were, inter alia, that:

  • There is no record of the Applicant reporting seating problems with the vehicles he was driving over a six month period;
  • No evidence was presented of the Applicant complaining to fellow workers or to any other third person of vehicle seating problems or of jarring and jolting whilst driving;
  • No evidence was presented of any systemic problems with either the old or new seating;
  • There was time gap between the Applicant’s final shift and the onset of the symptoms on 21 October 2014, with the Applicant suffering no pain until the morning of 21 October 2014;
  • There was no evidence of the Applicant suffering persistent pain or discomfort over the six months period leading up to 21 October 2014; and
  • There was no reported suggestion to Dr Nixon when she treated the Applicant on 22 October 2014, of any problems with jarring and jolting from driving road trains

The applicant further submitted pursuant to s 5A(1)(b) that he suffered a sudden and ascertainable, physiological change whilst at a meeting with management. Senior Member John Sosso found:

[146] … the Applicant suffered pain and was incapacitated when attending a meeting with management on 21 October 2014. He had previously suffered pain when having breakfast. He had been stood down pending an investigation into claims he made concerning racial vilification, but was still an employee and was required to remain at the camp site. Both having breakfast and attending the meeting were events in the course of his employment.

[150] … It could be said that the injury in this matter did not occur during an interval in an overall period of work, because the Applicant was required to attend a management meeting and was thus acting on the instruction of his employer in relation to an employment issue at the time the injury occurred.  However, even if that were not the case, as already observed, if the injury occurred in an interval, then the Applicant was engaging in activity that was induced or encouraged by the Respondent.

Satisfied that the injury suffered by the applicant on 21 October 2014 resulted in an impairment pursuant to s 14 of the Act, the decision under review was set aside and the matter remitted to the respondent to calculate quantum of compensation.

David Cormack – Brisbane Barrister & Mediator

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