Evidence Required To Prove Personal Injury For Wry Neck Sustained On Flight To Site Whilst Asleep

Mr Piggott (the respondent) claims to have been injured on 15 December 2013 while working for the appellant at Tom Price, as an electrical maintenance worker on a fly-in fly-out basis. The respondent made a claim for workers’ compensation under the Workers’ Compensation and Injury Management Act 1981 (WA) (WCIM Act) in respect of injuries suffered to his left shoulder and neck.

On 15 December 2013, the respondent returned to Site from Perth. During the flight from Perth to Paraburdoo, he slept leaning against a window. When he awoke prior to landing, he immediately felt severe pain in his ‘neck region’.

He subsequently claimed workers’ compensation for neck and shoulder injuries.

At first instance, the Arbitrator held that:

1. with respect to the neck injury, the respondent had suffered a ‘personal injury by accident’, and had suffered an aggravation of an previous underlying neck problem;

2. the respondent had pre-existing problems with respect to his left shoulder by way of underlying age related issues, which was asymptomatic prior to the flight. The flight had triggered a left shoulder strain, which coupled with his overhead work completed the following day, resulted in the development of left shoulder problems and ongoing symptoms. Employment factors (the flight on 15 December 2013 and the work completed on 16 December 2013) had contributed to a significant degree to the aggravation of the pre-existing condition;

3. the respondent sustained two ‘personal injuries by accident’ in the course of his employment;

4. both injuries occurred during the course of employment, because his travel to Perth to Paraburdoo was incidental to his employment; and

5. the respondent was incapacitated for work and entitled to workers’ compensation payments as he had been unable to earn an income in any employment reasonably open to him.
The appellant commenced appeal proceedings in the District Court of Western Australia.

McCann DCJ allowed the respondent’s appeal. He found the Arbitrator could not rely on evidence about the relevance of the respondent’s activities at work on 16 December 2013. This was because the appellant’s case at Arbitration was restricted to the flight on 15 December 2013.

The decision was based on the following reasoning:

• given the respondent’s pre-existing conditions, it was not open for the Arbitrator to find for him just because of the onset of symptoms;
• the evidence made it clear that the respondent’s claim was that his injuries were solely attributable to the flight on 15 December 2013, and he did not contend that he suffered any compensable injury in the workplace itself. As there was no medical evidence to support that the injury occurred on the flight, it follows that the symptoms arose in the course of the disease, not the course of employment;
• there was insufficient evidence to support a finding that the neck injury was permanent, as the Arbitrator failed to explain how the flight may have initiated or prolonged the neck injury suffered; and
• it was not open to the Arbitrator to make findings which needed expert evidence in support that was lacking.

This decision clarifies that adequate medical evidence is required to establish whether a worker’s injury arose in the course of the disease or the course of employment. A worker needs to do more to establish an injury than merely allege the existence of symptoms.

Citation: Spotless Group Limited v Piggott [2015] WADC 123.

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Date: 26 October 2015

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