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[Extract from Queensland Government Industrial Gazette,
dated 24 October, 2008, Vol. 189, No. 12, pages 671-681]
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Workers' Compensation and Rehabilitation Act 2003 - s.550 - procedure for appeal
Kym Phyllis Whittaker AND Q-COMP (WC/2008/50)
DEPUTY PRESIDENT SWAN / 16 October 2008DECISION
This is an application filed by Mrs Kym Phyllis Whittaker (the appellant) against a decision of the Review Unit, Q-COMP dated 13June 2008 issued pursuant to s.545(1)(a) of the Workers' Compensation and Rehabilitation Act 2003 (the Act).
Q-COMP's decision is as follows:
"In summary, I have determined that the deceased was a worker who sustained personal injury. However, I have determined that the claimant cannot rely on Section 34(1)(c) of the Act. As such, any claim must be properly considered under Section 32 which requires, in part, that the deceased's employment was a significant contributing factor to his injury. I agree with the claimant that the deceased's employment was not a significant contributing factor to his injury. The decision of the insurer is therefore confirmed.".
Background to the appellant's claim
The "Notice to Admit Facts" details the background to the claim.
"1. The Appellant, Kym Phyllis Whittaker, is the widow of Barry John Whittaker ('the Deceased').
2. The Deceased died on 27 April 2007.
3. The Deceased was employed by Queensland Rail as a train driver at the time of his death.
4. The Deceased was a 'worker' within the meaning of section 11 of the Workers' Compensation and Rehabilitation Act 2003 ('the Act').
5. The Deceased died as a result of coronary artherosclerosis ('a heart attack') while in a shower at an accommodation unit at Mortimer Road in Acacia Ridge, owned by Queensland Rail.
6. On 27 April 2007, the Deceased had driven a train (together with another worker, Jason Riley ('Mr Riley')) from the Toowoomba railway station to the Acacia Ridge railway station in Brisbane.
7. Queensland Rail's procedures required the Deceased to take a rest from driving (referred to as a 'lay off') for eight hours before making the return journey.
8. Queensland Rail provided accommodation at premises at Mortimer Road in Acacia Ridge, about 10 minutes away from the railway station, for drivers to take their rest breaks.
9. The Deceased and Mr Riley were rostered to drive a train from Acacia Ridge back to Toowoomba on 28April 2007 at about 2.40am.
10. At or about 6.30pm, Mr Riley left the Deceased and went to bed in his room at the Acacia Ridge quarters.
11. The Deceased had made arrangements with Queensland Rail to receive a wake up call between 1am and 1.30am on 28 April 2007.
12. A wake up call was placed to the Deceased's rooms at the quarters between 1am and 1.30am by Darren Pierce ('Mr Pierce'), the roster officer, which was not answered.
13. Mr Riley was then contacted by Mr Pierce with a request that he wake the Deceased. Mr Riley telephoned Mr Pierce back to say that he could not raise the Deceased, notwithstanding banging on the door. The Deceased's door was locked.
14. Mr Riley kicked the Deceased's door with his steel capped boots to make a loud noise, but there was no response.
15. The driver in charge, Mr Luke Bond, was in the area and was contacted by Mr Rod Fuller, Queensland Rail's area coordinator, and requested to attend upon the quarters with a master key.
16. Mr Bond attended upon the quarters with a master key. The Deceased's room was opened.
17. The shower in the Deceased's room was heard to be running. The Deceased was observed to be in the shower. The Deceased was unconscious. The Deceased was found at or about 2.28am.
18. The Deceased had signed off duty at 5.55pm on 27 April 2007.
19. The Deceased was not entitled to and was not paid any wages for the lay off.".
The legislation
Sections 32 and 34 of the Act state:
"32 Meaning of injury
(1) 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.
…
(3) Injury includes the following -
(a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
(b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -
(i) a personal injury;
(ii) a disease;
(iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation;
(c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to the causing the loss of hearing;
(d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;
(e) death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;
(f) death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation.
…
(5) Despite subsection (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -
(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b) the worker's expectation or perception of reasonable management action being taken against the worker;
(c) action by the Authority or an insurer in connection with the worker's application for compensation.
Examples of actions that may be reasonable management actions taken in a reasonable way -
· action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
· a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment.
…
34 Injury while at or after worker attends place of employment
(1) An injury to a worker is taken to arise out of, or in the course of, the worker's employment if the event happens on a day on which the worker has attended at the place of employment as required under the terms of the worker's employment -
(a) while the worker is at the place of employment and is engaged in an activity for, or in connection with, the employer's trade or business; or
(b) while the worker is away from the place of employment in the course of the worker's employment; or
(c) while the worker is temporarily absent from the place of employment during an ordinary recess if the event is not due to the worker voluntarily subjecting themself to an abnormal risk of injury during the recess.
(2) For subsection (1)(c), employment need not be a significant contributing factor to the injury.".
Schedule 6 of the Act defines "place of employment" as:
"… the premises, works, plant or place for the time being occupied by, or under the control or management of, the employer by whom a worker concerned is employed, and in, on, at, or in connection with which the worker was working when the worker sustained injury.".
Appellant's submissions
The appellant relies upon s.34(1)(c) of the Act and Q-COMP relies upon s.34(1)(b) of the Act.
In order for s.34(1)(c) of the Act to apply, it is necessary:
"(a) that there be an injury;
(b) to a worker;
(c) that the event happens on a day on which the worker has attended the place of employment as required under the terms of the workers' employment;
(d) that the worker was:
(i) temporarily absent;
(ii) from the place of employment;
(iii) during an ordinary recess;
(iv) the event is not due to the worker voluntarily subjecting himself to an abnormal risk of injury during the recess.". [Appellant's submissions, point 28.]
There is no disagreement between the parties around the question of "injury", "worker" and "when the worker attended employment".
In reliance upon s.34(1)(c) of the Act, the appellant says that the injury occurred during the course of an "ordinary recess".
The appellant's contention is that it was a requirement of Queensland Rail that the Deceased take an 8 hour rest after driving a train from Toowoomba to Acacia Ridge, before he was able to drive a train on the return journey.
Mr Gregory Smith (State Secretary of The Australian Federated Union of Locomotive Employees, Queensland Union of Employees (the Union)) during the course of his evidence, highlighted that the enterprise agreement covering the employment of the Deceased, "Queensland Rail Traincrew Subsidiary Agreement Extension, Certified Agreement 1998" (the Certified Agreement) states inter alia, that:
"PART 5 - TRAINCREW QUARTERS STANDARDS
5.1 Preamble
As a general principle traincrew quarters should be provided for the sole use of employees who are to be domiciled for short time spans between shifts of duty, e.g. traincrews, on board staff, truck drivers etc.
…
Staff using quarters have an obligation to consider the needs of others utilising such amenities, to keep noise to an acceptable level and to ensure they are kept clean and tidy.
5.2 Quarters Type
The standard and design of traincrew quarters will be the subject of consultation between QR, Unions and traincrew depot representatives and are to conform with the Building Code of Australia.
The design of new quarters is to ensure the minimisation of noise, and conform with other traincrew requirements in relation to stability and layout.
The locality of new quarters will have to be assessed on a location by location basis, though as a general rule should be neither too far from sign on/sign off facilities nor too close to sources of disturbing noise, i.e. shunting yards, main roads etc.
The use of Motels/Hotels by QR for traincrew laying off between workings is to be the subject of consultation and agreement between QR and appropriate Union representation and the affected staff.
5.3 Recommended Standards
(a) Bedrooms
(i) Traincrew are to be accommodated in separate single bedrooms.
(ii) In recognition of the importance complete bedroom darkness plays in the facilitation of sound sleep during the day by drivers appropriate devices, such as shutter blinds, should be fitted to windows to enable full darkness.
(iii) Bedrooms are to be fitted with air conditioners with cooling and heating capacity.
Where alternative air conditioning systems which do not have both heating and cooling capacity are currently installed, these will be replaced in accordance with an agreed replacement program.
(iv) Bedrooms are to be of adequate dimensions.
(v) Beds and mattresses are to be of an agreed construction size, e.g. 3/4 size.
(vi) Adequate hanging space for clothing etc. is to be provided.
(vii) Individual reading lamps are to be provided.
(viii) Bedrooms are to be fully carpeted.
(ix) Noise insulated.
(b) Hallways
(i) Hallways are to be equipped with adequate lighting.
(ii) Hallways are to be fully carpeted with thick underlay to reduce noise, though other flooring material may be used where this is agreed.
(c) Kitchen
With due cognisance to the number of employees utilising quarters the following kitchen equipment it to be provided:
(i) Modern gas/electric stove or hotplate.
(ii) Microwave Oven.
(iii) Air filter/extraction equipment.
(iv) Adequate sized refrigerator/freezer.
(v) Electric kettle.
(vi) Electric toaster.
(vii) Adequate provision of tables and good quality padded seating.
(viii) Good quality tiles or vinyl flooring.
(ix) Adequate air conditioning with cooling and heating capacity.
(x) Full screens.
(xi) Tucker Box racks.
(xii) Kitchen utensils.
(xiii) Hot and cold water.
(d) Amenities/Lounge Room
(i) Good quality lounge type seating.
(ii) Colour television.
(iii) Provision of tables for recreational activities.
(iv) Adequate air conditioning with cooling and heating capacity.
(v) Vinyl or tiled flooring.
(vi) Fully screened.
(vii) Noise insulated.
(vii) (sic) Adequate air conditioning with cooling and heating capacity.
(e) Bathroom/Laundry
(i) A clothes drier will be provided for the drying of towels.".
Mr Smith said that "lay offs" are required "because of safety issues involved with fatigued drivers driving trains". [Exhibit 1B, point 4.] Lay offs had been a requirement of Queensland Rail and its predecessors for the last 120 years.
Mr Smith further stated:
"Drivers are expected to use their lay offs for the purpose of resting. In my experience, train drivers generally take the question of fatigue very seriously.". [Exhibit 1B, point 9.]
Within the Queensland Rail Code of Conduct, there was a requirement that drivers present themselves fit for duty. Mr Smith also advised that it was necessary for drivers to be contactable during a lay off and that was another reason for the provision of accommodation of the type at Acacia Ridge.
Against that background, the appellant states that the "8 hour rest" was a "usual and required practice" of Queensland Rail. [Appellant's submissions, point 32.]
The Macquarie Dictionary (3rd Edition) defines "recess" as "withdrawal or cessation for a period from the usual occupation, work, or activity". [Appellant's submissions, point 36.] It is contended that the Deceased's rest period was a usual and required cessation for a period from his usual work of train driving and, therefore, falls squarely within the meaning of the expression "ordinary recess". [Appellant's submissions, point 37.]