Ground Breaking Decision
On 27 September 1996 Arbitration Officer Pope of the Workers’ Compensation Tribunal published her decision in the matter of John Adams v WorkCover/NZI (WB & SM Doser) confirming the decision of NZI Workers’ Compensation (SA) Ltd pursuant to Section 42A(4) of the Act reducing the worker’s LOEC entitlement pursuant to Sections 42A(2) and (3) on the ground that he was capable of carrying out work as an invoice clerk for a period of three hours per day, five days per week.
Michael Ricketts conducted the arbitration on behalf of NZI and considers that on the facts, it was an excellent case to run.
An Appeal was promptly instituted by the worker and was argued before the Workers’ Compensation Tribunal on Tuesday 10 December 1996: Tas Carabelas conducted the Appeal.
The arguments related not only to the facts but also the meaning of the terms “suitable employment” and “commonly available” in Section 42A(3)(d).
We will keep you posted.
Move to Riverside
As you may be aware the Workers’ Compensation Tribunal have relocated to the 6th Floor, Riverside Centre, North Terrace, Adelaide.
The Riverside Centre is a modern building with comfortable appointments. No doubt the move will be appreciated by everyone involved in the new system.
GUN & DAVEY is pleased to announce that we have leased an office in Riverside Chambers at the Riverside Centre, which is located at the Plaza Level.
We anticipate that the new Chambers will allow Gun & Davey to conduct proceedings at the Workers’ Compensation Tribunal with greater efficiency and to confer with you, our major employers and clients prior to and during proceedings at the Tribunal in comfortable and confidential surrounds.
Covered Cases
"Jingle Balls"
Sullivan v. The Corporation (Western Personnel)
DECISION OF THE WORKER’S COMPENSATION APPEAL TRIBUNAL
(A24/1996)
Catchwords:
Applicability of Section 36 to closed period claims.
Facts:
The worker obtained employment as Father Christmas in the John Martins Store Magic Cave for the period 2 November 1991 to 24 December 1991. On 29 November 1991 a mischievous child kicked Santa in the groin causing Santa to become incapacitated. Santa was partially incapacitated until well after 24 December 1991.
Santa received a payment covering the period up to 30 December 1991 from the employer.
By determination dated 7 February 1992 Santa’s claim for “kick to the groin” was accepted but the issue of incapacity was left undetermined. The Corporation on 8 March 1994 purported to determine Santa’s claim for a closed period up to 24 December 1991. This determination was found to be of no effect and invalid.
Santa argued that his payments had been unlawfully discontinued pursuant to Section 36 and that as a consequence he was entitled to continuing weekly payments until validly terminated.
Held:
There had been an unlawful discontinuance as the worker’s claim was accepted; he received payments, which were then stopped without regard to Section 36.
Commentary:
- “Payments” does not mean “payment by the Corporation”.
- Unless there is a closed period determination clearly made, Section 36 must be complied with.
“Christmas Drinks May Spell Trouble For Employers”
WorkCover Corporation (Concrete Constructions) v. Butson
DECISION OF THE WORKER’S COMPENSATION APPEAL TRIBUNAL
(A17/1996)
Catchwords:
Journey injury – real and substantial connection – worker leaving employer hosted social function intoxicated.
Facts:
The worker attended an employer hosted social function coinciding with his shift at a hotel where food and complimentary alcoholic beverages were provided. The worker was paid for this shift. The worker became intoxicated and left in his car for home and was injured in an accident. At the time of leaving, the social function had almost wound down.
The worker’s claim was rejected on the basis of no real or substantial connection.
Held:
The worker’s claim was not defeated by reason of his intoxication pursuant to Section 30B(2)(b)(ii) as the injuries sustained were serious and permanent. The hotel constituted a place of employment as the worker was paid to attend the function and in doing so performed an activity forming part of his job.
The hotel did not lose its character as a “place of employment” simply because the worker remained at the hotel after the function had concluded in this instance as the Tribunal was unable to determine on the facts when the function actually ended.
There was a real and substantial connection between the journey and the accident out of which the disability arose, as the worker’s intoxication was a substantial cause of the accident and the liquor supplied by the employer contributed to that intoxication.
The worker’s injuries were compensable.
Commentary:
A cab charge issued to employees with a direction that it is used or a direction by the employer that workers are not expected to attend such work related social functions as part of their duties of employment may avoid this scenario.
JH Michell & Sons (Australia) Pty Ltd v. Richards
DECISION OF THE WORKER’S COMPENSATION APPEAL TRIBUNAL
(A31/1996)
Catchwords:
Restoring mutuality by statement that worker is ready, willing and able to undertake suitable duties.
Facts:
The worker was filmed and seen undertaking after hours activities incompatible with the physical restrictions specified by the worker’s certifying doctor during a period wherein the worker was certified firstly unfit and then partially incapacitated for work.
The worker was summarily dismissed on the basis of this film. The worker sought to revive mutuality by a letter stating he as ready, willing and able to undertake suitable duties.
Held:
Mutuality had not been restored. In these circumstances, more was required by the worker to revive mutuality than an assertion that he was ready, willing and able to restore mutuality.
“Had the worker provided real indicia (and they are not very difficult to excogitate) of a change of attitude, he might have laid the proper ground work for success on that ground”.
General Motors – Holdens Automotive Ltd v Busby
DECISION OF THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA
(Unreported dated 31 October 1996)
Catchwords:
Section 30(4) – social or sporting activity.
Facts:
The worker injured his eye with a table tennis bat whilst playing table tennis during his lunch break on a table in a games room provided by the employer who permitted its worker’s to play table tennis in this way.
On appeal to the Tribunal the worker’s disability was found to be compensable. The Tribunal held that whilst a worker is in attendance at the place of employment during an authorised break, subject to the provisions relating to serious and wilful misconduct and intoxication, any injury sustained during that time, is compensable even if sustained during the course of a social or sporting activity.
The Tribunal was of the view that Section 30(3) qualified Section 30(4).
Held:
Section 30(4) qualifies Section 30(3). The worker was injured whilst involved in a sporting activity that did not form part of the worker’s employment and that he was not directed or requested by. Is employer to participate – disability not compensable?
BHP Pty Ltd v Mason & Jennings
DECISION OF A SINGLE JUDGE OF THE SUPREME COURT OF SOUTH AUSTRALIA
(Unreported dated 7 November 1996)
Catchwords:
Production of surveillance film.
Facts:
The Review Officer directed production to the worker (before the worker had given evidence in chief) of film taken of the worker.
The Review Officer stated that only in unusual cases should the discretion be exercised to deny inspection of film.
Held:
This direction and viewpoint were inconsistent with Robbins v Harbord (1994) 62SAR229, which was binding on the Review Officer.
The direction by the Review Officer that the film be produced for inspection had the effect of infringing the right of the employer to present its case and so constituted a breach of requirements of procedural fairness.
Commentary:
Pursuant to Section 92(2)(a), on application, a Conciliator may excuse a party from producing film to the other party.
No similar provision exists with respect to an Arbitration Officer’s power (see Sections 93 and 93A).
However refer to Rule 4(2)(a) and (b). This provides for discretion in the Arbitration Officer to require production to the Arbitration Officer and to direct inspection by the other party of a document, which includes film and surveillance reports. This power being discretionary also implies the power to refuse an application for inspection by the other party.
The legislation suggests that the order made by a Conciliator excusing production of evidentiary material to the other party is only for the purposes of conciliation. A separate order must be sought from an Arbitration Officer at the pre-arbitration hearing excusing production to the other party of any document (including film) for inspection.
It is therefore necessary for the Corporation and employers to seek orders for non-production at both levels, conciliation and arbitration – an order at conciliation does not flow on beyond the conciliation conference stage.
Tid Bits
A review Officer, who issues a written determination in relation to a Section 43 dispute quantifying the worker’s entitlements in dollar amounts but not making allowance for Regulation 16a cannot subsequently amend his/her decision with an addendum applying Regulation 16a. The Corporation must appeal the Review Officer’s initial decision – Neindorf A152/1996.
A Section 35(I)(b) determination issued prior to the date of the first anniversary of incapacity is not void simply because it is issued prematurely, provided the reduction is stated to come into effect and does come into effect on the date of the first anniversary of incapacity – Georgousis A134/1996.
Disclaimer: This newsletter has been printed by Gun & Davey as a service to clients. All information was accurate at the time of printing and comments made are of a general nature and intended to be for guidance only. No person should rely on the contents of the newsletter without first obtaining advice from an appropriately qualified person.
Covered