By Gaby Grammeno Contributor
She’d installed the 60cm high metal fence so that a colleague’s puppy – which she was minding for the day – could be kept away from her family’s pet, a rabbit that lived in a cage in the sunroom where she worked.
Around 9.30 in the morning she got up from her desk to get a coffee, but caught her foot while stepping over the pet fence on her way to the kitchen. She fell hard on her right knee and side and immediately felt severe pain.
She was taken to hospital by ambulance and, after x-rays revealed a fractured bone in her upper arm, discharged with a full metal knee-brace and a referral to the physiotherapy outpatient clinic.
She saw her GP some days later, and also sought chiropractic treatment for consequential neck pain. A steroid injection in her right shoulder improved her symptoms though she no longer had full range of motion, and she had ongoing pain from her knee.
She applied for workers compensation but her employer, a Local Government Association, rejected the claim because it was not satisfied that her employment was a significant contributing cause of her injuries.
The case was heard in the South Australian Employment Tribunal.
In the Tribunal
Auxiliary Deputy President Magistrate Jodie Carrel heard that the worker had been employed by a South Australian local council as an asset programmer/operations programmer since 2012. Her duties were mainly office-based, but from time to time she was permitted to work from home, using a work-issued laptop. On those occasions, her employer did not give her any direction about what activities she could or could not carry out during authorised work breaks.
From July 2020 she worked consistently from home due to COVID, setting up a home office in her sunroom.
By the end of 2021 the worker had returned to working in the office four days a week, but still worked from home when she was unwell or for other reasons.
In order to look after a colleague’s dog, she’d received tacit approval to work from home from 19 September 2022. To keep the dog away from the pet rabbit, she’d erected the metal pet fence at the doorway of her sunroom, which she tripped over when she got up for a coffee.
Though she did not have set times for breaks, she said she would have taken a coffee break at around that time if she’d been working in the office. Her employer had encouraged staff to take regular breaks away from their workstations as a matter of good practice, for the health benefits.
The employer submitted that she’d previously completed and signed a WHS checklist for her home office environment, but they had not known about the pet fence – the primary cause of the injury – and no-one at the Council had told her to put up the pet fence, which had nothing to do with the worker’s employment.
In relation to the knee injury, the employer pointed to inconsistencies in her evidence and maintained that the worker exaggerated when convenient, that she’d had knee surgery in the past, that she’d initially claimed her right kneecap was fractured in the fall but the x-ray revealed no fracture, and that her GP’s records did not show she’d complained of knee pain after the fall.
The Court’s task was to determine whether the worker’s injuries had arisen out of her employment in accordance with the Return to Work Act 2014, and whether her knee had been injured as well as her shoulder.
In considering the arguments, Magistrate Carrel said the fact that the worker ‘created the workplace hazard the day prior, and unbeknown to the Council, does not preclude a finding that it is an employment-related cause. This is particularly so, given the extent of [the worker’s] autonomy in managing her own health and safety while working from home. Indeed, the notion that a hazard created by a worker precludes a finding of compensability has not been a feature of the statutory workers compensation scheme since amendments in 1994 to the Workers Rehabilitation and Compensation Act 1986 removed the exclusion in circumstances where a worker voluntarily subjects himself or herself to an abnormal risk of injury’.
Magistrate Carrel noted that ‘memory is fallible’ and that the inconsistencies did not invalidate the main facts of the worker’s case. She also noted that the hospital records referred to the worker’s knee pain.
The Magistrate was satisfied that the worker was taking an authorised paid coffee break when she tripped and fell, and her injuries therefore arose from her employment.
Magistrate Carrel found that the worker’s shoulder and knee were both injured when she fell, but that the adverse consequences of the knee injury did not persist for more than ten days.
As there was limited information with respect of the compensation sought by the worker, Magistrate Carrel will hear from the parties before making of orders reflecting her findings.
What it means for employers
Employers should not assume that an injury sustained on a break while working away from the office is not compensable, even if the employer was not aware of the hazard which occasioned the injury and the hazard was not directly involved in the employment.
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