By Ryan Heath and Lilia Fermor
A case study of a recent decision by the Workers Compensation Regulator to accept a police officer’s sporting injury as a compensable injury under section 32 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
We have recently acted on behalf of a police officer who was injured during a Queensland Police Service sanctioned sporting event. The officer immediately took steps to lodge a WorkCover claim for his injury.
After examining the available evidence WorkCover determined that the officer’s injury had not ‘arisen out of’ or ‘in the course of his employment’ because he did not receive any form of inducement, nor was it compulsory for the officer to participate in the sporting event. Accordingly the claim was rejected.
The downfall in the officer’s claim for compensation was the lack of evidence he provided to WorkCover. It is a common misconception by officers that WorkCover will take steps to obtain the evidence necessary to support a claim; when in fact it is the responsibility of the officer to prove their claim and provide all supportive evidence, particularly documentary evidence.
For a physical injury to be accepted under the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”) there are three requirements under section 32(1)(a):
- A personal injury;
- Which arose out of in in the course of employment; and
- That employment was a significant contributing factor to the injury.
The injury in this case occurred when the officer had travelled with his team to a sporting competition in New South Wales. He subsequently injured himself whilst participating in the sporting event.
In this particular case the officer had provided sufficient evidence to prove that he had sustained an injury during the sporting event, however, he did not provide sufficient evidence to prove that there was more than a temporal relationship between his injury and his work.
As to whether something falls within the course of the employment, it must be proven that the worker was reasonably required, expected or authorised to do this act in order to carry out his or her duties.1
In support of the connection between the officer’s employment and his injury we had relied upon the longstanding High Court Case of Hatzimanolis v ANI Corporation Ltd (Hatzimanolis).2 In this case the principle formulated by the court was as follows:
“…an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment.”
The decision of Hatzimanolis was comprehensively considered by the High Court in Comcare v PVYW.3 In this case the following test was established consisting of two parts:
(a) What was the activity being engaged in at the time of the injury? and
(b) Did the employer induce or encourage the employee to engage in that activity?
Subsequently, both the decision of Hatzimanolis and PVYW were further considered by
President Martin in the Industrial Court Decision of Campbell v Australian Leisure & Hospitality Group Pty Ltd & Anor.4 President Martin explored the conclusion reached in the earlier decisions regarding an injury arising in the course of employment, and detailed:
“For the purpose of this appeal the following principles enunciated in PVYW are relevant:
- For an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when this injury occurs.
- Where the circumstances of the injury involve the employee engaging in an activity, the question will be whether the employer induced or encouraged the employee to do so.
- Where an activity was engaged in at the time of the injury, the relevant questions is not whether the employer induced or encouraged the employee to be at a place.
- An employer is not liable for an injury which occurs when an employee undertakes a particular activity, but has merely required the employee to be present at the place where the activity is undertaken.
- There is no justification for taking a “wide view” of an employer’s liability in circumstances where the employer could be seen to have encouraged the employee to be at a particular place.”
On behalf of the injured officer we made detailed submissions to the Workers Compensation Regulator regarding the form of inducement by the QPS in encouraging the officer to participate in the sporting event.
We are pleased to advise that the Regulator accepted our submissions and accepted that the injury was sustained during an interval or interlude during the overall period of work. Accordingly the Regulator accepted that the injury occurred in the course of the employment given the inducement and encouragement of the QPS.
It is therefore recommended that when lodging an application for compensation for an injury which occurs during a sporting event or competition that the officer provides sufficient information which shows that they were more than likely:
- Engaged in an activity; and
- That activity was expressly or impliedly induced by the QPS.
To establish an officer was expressly or impliedly induced by the employer to participate in a sporting event, which caused an injury, the officer may wish to provide WorkCover with evidence of the following:
- That QPS members can only participate in the activity;
- That the event was promoted by the QPS;
- Any assistance from the QPS, such as the provision of paid sporting leave to attend the activity;
- Express encouragement or inducement from the QPS by way of flyers, emails and social media.
- That the activity is expressly encouraged because it will enhance membership with the QPS;
- Statement from the officer, colleagues or the sporting event organiser outlining the encouragement and inducement provided by the employer.
By satisfying the tests as outlined in the cases of Hatzimanolis, PVYW and Campbell the officer will ultimately increase their prospects of a successful workers’ compensation claim. Should officers require any further advices with respect to this or similar matters they should not hesitate to contact Mr Heath of our offices.