Summary: A tax office employee, who suffered from chest pains and then sustained an injury when she fell from a stretcher after her supervisor had called an ambulance to her workplace, has been denied compensation by the Administrative Appeals Tribunal (AAT). The AAT ruled that there was no causal connection between the fall and her place of work.

Foley v Comcare [2012] AATA 458

Ms Foley, an employee of the Australian Tax Office (ATO), arrived at work on a Wednesday morning and began suffering from chronic chest pains. An ambulance was then called to attend to her condition. In circumstances described by the AAT as “difficult to comprehend”, Ms Foley fell out of the stretcher while being transported to hospital and in the process sustained a badly fractured right elbow.

Ms Foley brought a workers compensation claim against Comcare, under the Safety Rehabilitation and Compensation Act 1988 (SRC Act), but the claim was unsuccessful. She then sought a review of the decision in the AAT.

The AAT had to consider whether Ms Foley had actually suffered an “injury” for the purposes of the SRC Act. Ms Foley’s workers compensation claim rested on the basis that her injury had occurred within the course of her employment. Alternatively, she submitted that her injury had occurred while she was temporarily absent from work because she was undertaking an activity that was at the request of the Commonwealth (s 6 1(c)), i.e. seeking medical treatment for her chest pain.

As part of the claim, Ms Foley also argued that her initial chest pain was an injury under the SRC Act, and that she had fractured her elbow while she was travelling for the purposes of receiving treatment for that initial injury (s 6(1)(g))., or at a place (within the ambulance) receiving treatment for that injury (s 6(1)(f)).

In their ruling the AAT noted the previous decision of Murphy J in Telstra Corporation Limited v Bowden [2012] FCA 576, which detailed that in order for an injury to arise out of the course of employment the injury needed a causal connection “which is less proximate than ’caused by’ or ‘results from’, but not a connection which is fanciful or tenuous”. Ms Foley was found to have inadequately shown this connection in her case.

Ms Foley’s employment at the ATO was shown to be a temporal connection, not a causal one because she was not performing any work duties at the time she was injured. This was supported by further evidence that suggested Ms Foley’s supervisors had no expectations that she would be returning to work that day.

The AAT also ruled that even though Ms Foley’s supervisor had called the ambulance, it was ultimately the ambulance officers who put her in the stretcher and proceeded to transport her to the hospital, not any employee of the ATO. Furthermore, her claim under s 6(1)(c) needed to have a sufficient connection with her employment, i.e. it had to relate directly to her duties as a tax office employee.

Ms Foley’s claims under s 6(1)(g) and s 6(1)(f) were also rejected by the AAT because she was unable to provide sufficient evidence that her initial chest pain was an injury (and not just a symptom), and that the elbow injury had been contributed to by her employment at the ATO.

For these reasons, the AAT affirmed the decision under review.

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