THOMPSON -v- ST JOHN OF GOD HEALTHCARE INC [2021] WADC 15
On the morning of the 26th of November 2018, the appellant went to gym and performed certain leg exercises. Later in the day she went to work at a hospital, where she was employed as a theatre nurse. She alleged that she suffered an injury at work causing a gradual onset of low back pain radiating into her right leg. Her employer denied this.
The dispute between the employer and employee was whether the employer was liable for her unfitness to work.
The arbitrator formulated the question as follows:
“Whether [the appellant] sustained an injury arising out of or in the course of her employment (s 5(1)(a), Workers’ Compensation and Injury Management Act 1981 (WA) (Act))”
His decision was that he was:
“… not persuaded, on the balance of probabilities, to accept the assertions made on behalf of [the appellant] that the medical evidence establishes that she sustained a personal injury by accident arising out of in the course of her employment.”
The appellant was not entitled to workers’ compensation and she then took the matter on appeal to the District Court of Westen Australia.
There were two grounds of appeal, namely that:
- The arbitrator erred in law when determining whether appellant suffered an injury as defined in s. 5 of the Act, because he utilised the incorrect test; and
- The Arbitrator erred in law when he found the appellant an unreliable witness when there was no reliable evidence to support that finding.
The Court held that an appellant can only appeal on a question of law by virtue of the provisions of s 247(2) of the Act. (Dodson v Woolworths Group Ltd [2020] WADC 157).
A question of law can be either an error of law, or an error in which law and fact are mixed (Catholic Education Office of WA v Granitto [2012] WASCA 266).
There is no clear difference between errors of law, errors of fact and mixed errors of law and fact, and there is no definitive test for this (Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21).
If the ground of appeal does not involve a question of law, then a linguistic reformulation of the problem will not make it so (Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17).
An error of law must also be material to the decision so that, but for the error, the decision would, or might, have been different (BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250).
The court then looked at the definition of “Injury” in Act.
“injury means —
(a) a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer’s instructions; or
(d) the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree;”
The appellant argued that the arbitrator had incorrectly relied on the test in s5(d) of the Act. Instead, he should have relied on s5(a). The importance being that s5(d) requires that work contributes significantly to a pre-existing condition. “Significant” contribution is not required in s5(a). Employing the wrong test, with its more onerous requirement, led the arbitrator to reject the appellant’s version.
The court found that the appellant suffered from an underlying asymptomatic L5 radiculopathy. The appellant alleged that there had been a gradual onset of right leg pain during her shift. In other words, it was her work on that shift which caused her previous asymptomatic low back condition to produce right leg pain. The hospital denied this and alleged it was triggered by her gym exercises earlier that morning.
The issue was therefore whether the cause of the appellant’s condition becoming symptomatic was her physical effort at her place of work.
Because of the fundamental and contradictory differences between the two scenarios it was necessary to consider the issue of credibility.
The Court then looked at the evidence in the case. There were two medical professionals, a GP and a physiotherapist who both recorded that the appellant had told them that the pain in her right buttock and right leg had started when she used the leg press at the gym.
The court thus held that it did not matter whether the test s5(a) or s5(d) was employed because on either version the injury was caused by the exercise in gym and not by work. The appeal was therefore dismissed.
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