On 25 January 2011, the applicant, Ms Behme, suffered a compensable back injury, after transferring a heavy patient while working at Royal Perth Hospital (RPH).
On 9 October 2012, Ms Behme was involved in a motor vehicle accident that did not arise in the course of her employment. However, she submitted that the workplace injury was a material contributing cause to the incapacity she experienced after the motor vehicle accident because her existing back symptoms “flared up”.
RPH argued Ms Behme’s incapacity after the motor vehicle accident did not result from the injury of 25 July 2011 and was not a material contributing cause to her incapacity after the accident.
The arbitrator allowed Ms Behme’s claim in part, finding that the incapacity resulted from the 25 July 2011 injury; however, weekly payments for deemed total incapacity, partial incapacity and statutory expenses were disallowed.
The arbitrator was not persuaded the motor vehicle accident was a supervening factor which displaced the original injury as the cause of the incapacity.
Ms Behme sought leave to appeal from the arbitrator’s decision claiming that, because the arbitrator found it would not be reasonable to expect her to sell her labour elsewhere for the period of incapacity, the arbitrator erred in law by failing to provide adequate reasons for not ordering weekly payments or partial payments after 15 November 2012.
RPH cross-appealed on the grounds that the primary court erred in law:
- in applying an incorrect legal test;
- by erroneously applying the principles of Pollock v Wellington (1995) 15 WAR 1 and finding that the evidence of Dr Thompson did not satisfy those principles;
- by failing to take into consideration relevant evidence; and
- by failing to provide, any or any adequate reasons for concluding that the motor vehicle accident on 9 October 2012 did not displace the original injury as the cause of the incapacity.
The learned Judge agreed with Ms Behme and granted weekly payments for total incapacity on the basis of the employer declining to utilise her actual capacity, which was restricted for the period 15 November 2012 to 12 December 2012. However, he dismissed her other claims.
The judge agreed with RPH’s ground of cross-appeal, that the arbitrator’s reasoning process was not applied to the correct test and this led the arbitrator to err in law. However, he dismissed the other grounds of cross-appeal.
The learned Judge then ordered that the matter be re-heard before another arbitrator.
For more information on this update or any other workers’ compensation matters please contact Ken Grunder on (08) 9321 3755.
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