In the following Alert, Senior Associate Jacqi Marshall and Solicitor Melissa McGarrity discuss the acceptance of an employee’s appeal in the Queensland Industrial Relations Commission (QIRC) in the decision of Ziebarth v Simon Blackwood (Workers’ Compensation Regulator)  QIRC 121, setting aside the decision of the Workers’ Compensation Regulator to reject the employee’s claim for compensation.
Mr Zienbarth (the appellant) was employed as a fleet service manager for a transport company (the company) in Cairns. The appellant alleged that he suffered a work related injury to his lower back as a result of slipping on wet tiles in his home.
It was agreed in the appeal that the appellant’s contract with the company required him to:
- Work at least 55 hours per week;
- Make himself available to work additional hours as required by the company;
- Make himself available to be on-call; and
- Be responsible for maintenance and repair issues associated with the company’s fleet of vehicles.
The appellant was supplied with a work telephone which the appellant assigned a distinctive ring tone. He stated that it was his obligation to answer the mobile telephone as soon as it rang to ensure that his responsibilities regarding the safety, maintenance and repair of the company’s fleet were met. The appellant stated that he had been previously chastised by the company for not answering his work telephone.
On the date of the alleged incident, the appellant was showering at approximately 10.00pm when he heard the distinctive ring tone of this work phone. As he exited the shower to answer the phone, he slipped and began to fall but was able to catch himself from hitting the ground by grabbing the vanity and toilet. At 4.00am the appellant woke to ready himself for work and felt “excruciating” pain in his lower back radiating to his right leg. On the basis of the medical evidence, it was accepted that as a result of the slip the appellant suffered a disc protrusion in his lower back.
The original decision of the Regulator rejected the appellant’s application for compensation on the basis that the injury did not arise out of, or in the course of, employment and that the appellant’s employment was not a significant contributing factor to the injury. The appellant appealed this decision.
Did the injury arise out of or in the course of employment?
For the purposes of this appeal the QIRC referred to the decision in Comcare v PVYW  HCA 41 (in which a worker sought compensation for injuries suffered when a shelf above her head in a motel room fell on her during sex). In that matter the relevant test was applied as follows:
- What was the activity being engaged in at the time of the injury? and
- Did the employer induce or encourage the employee to engage in that activity?
In this instance, the activity to be considered was the answering of the work phone. In relation to the second part of the test, it was accepted that it was a term of the appellant’s contract that he make himself available from time to time to be on-call, he was supplied with a work telephone to carry out his duties and that, at all material times, the appellant was in fact on-call.
The QIRC held that the company induced or encouraged the appellant to engage in the activity (answering the work phone) and therefore the injury occurred in the course of his employment.
Was the appellant’s employment ‘a significant contributing factor to the injury’
The QIRC considered a number of decisions to determine the meaning of ‘significant contributing factor’. Significant was used in the sense of the words “important” or “of consequence” (Qantas Airways v Q-Comp (2009) 191 QGIG 115) and that “the employment significantly contribute to the injury is apt to require that the exigencies of the employment must contributed in some significant way to the occurrence of the injury” (Newberry v Suncorp Metway Insurance Ltd  1 Qd R 519 at 529).
After consideration of the medical evidence and expert testimony the QIRC determined that there was a causal relationship between the appellant’s employment and the injury. It was stated that “the proximity of time between the fall in the bathroom and the onset of pain, in the absence of any competing causal incident leads me to conclude, on the balance of probabilities, that the appellant’s employment was a significant contributing factor to his injury” .
The QIRC held that the appellant had in fact suffered an injury within the meaning of s32 of the Act and upheld the appellant’s appeal.
Costs were ordered against the Regulator.