When is an Injury in the Course of your Employment?

Section 9A(2) of the Workers Compensation Act 1987 provides a list of matters to be taken into account when determining whether a worker’s employment was a substantial contributing factor to an injury and therefore is compensable. 

The matters that must be taken into account are as follows:- 

  1. The time and the place of the injury; 

  1. The nature of the work performed and the particular tasks of that work; 

  1. The duration of the employment; 

  1. The probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment; 

  1. The worker’s state of health before the injury and the existence of any hereditary risks; and 

  1. The worker’s lifestyle and his or her activities outside of the workplace. 

The effect of this statute is that when making a claim for worker’s compensation, it may be more difficult than you expected to overcome the high bar that is establishing that your employment was a substantial contributing factor towards your injury. 

If your injury is a disease injury (that is when the nature and conditions of your employment gradually injure you over time), the bar is even higher and your employment must be the main contributing factor towards the injury. 

State of New South Wales (Western NSW Local Health District) v Knight

Facts

The injured worker, Ms Knight, was employed by the Appellant, Western NSW Local Health District as a case worker in a court diversion program. The worker’s role required that she counsel persons before they were sentenced and was based in Orange with outreach to Parkes and Forbes. 

Throughout the COVID-19 pandemic, the worker has performed her duties from home in compliance with the stay-at-home orders issued by the NSW Government between July 2021 and October 2021. 

When working from home on 8 October 2021, the worker had been bitten by a dog on her right hand as she attempted to break up a dog attacking her daughter’s puppy at her front door. 

Resulting from her intervention, the worker suffered lacerations to her right hand and attended hospital. Since the time the worker had been unable to return to work as a result of both a diagnosis of Post Traumatic Stress Disorder and her physical injuries. 

Subsequently, the worker claimed workers compensation however the Employer disputed the claim, raising s 9A(2) of the Workers Compensation Act 1987 stating that by intervening in the dog attack, the worker stepped outside of the performance of her duties and as such her injury was not compensable given she was not directed to intervene by her employer. 

The worker sought a review of this determination however ultimately it could not be resolved internally and the matter was brought before Member Homan who determined the dispute at first instance.

Member Homan awarded the worker weekly payments of compensation and reasonable and necessary medical expenses for both the physical and psychological injury as she was satisfied that the worker’s employment was a substantial contributing factor. 

Critical Issue

At what point does a worker step outside of the bound of his or her duties and thereby employment is an addition of substance? 

Appeal 

The matter was heard before His Honour President Judge Phillips who dismissed the appeal noting that the worker’s employment was more than a real contributing factor as the reason why the puppy had been placed outside of the worker’s home was so the worker could perform her duties stating:- 

  1. “The only reason that the puppy was places outside of the respondent’s house was to facilitate the respondent’s work for the appellant in a proper manner.”

  1. “In this case, the primary cause, in the employer’s submission to the Member… was the purchase by the worker of a puppy for her daughter. A further cause was the daughter’s illness. A further cause was the worker’s undertaking to care for the puppy. A further cause was the presence in the vicinity of the worker’s home of a dog which the worker knew to be aggressive…  It follows that when there are multiple factors to an injury, some of which are non-work related, it is imperative for the tribunal of fact to consider those factors.”

Summary

Ultimately, His Honour determined that in considering those very non-work related factors, the conditions of the worker’s duties meant that she had to place the puppy outside and therefore the worker’s employment was more that merely a contributing factor towards her injury and was in fact a substantial contributing factor towards her injury. 

His Honour confirmed the Certificate of Determination of Member Homan and the worker retained her workers compensation entitlements. 

Article by Kaleob Vickers McKeon