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Written by Peter Carter

July 31, 2015

A worker who slipped on the bathroom floor while rushing to answer his phone will receive injury compensation from his employer despite the accident happening at his home.

In the case of Robert Ziebarth, fleet service manager for Cairns-based Blenner’s Transport who was contracted to work “at least 55 hours per week plus additional hours if required”, a fall at home was “significantly” connected to his work role.

Deployed at the company’s Tully depot, he was supplied with a work mobile and was expected to answer calls day and night when “on-call”. His role was to “keep the trucks on the road and to make sure everyone was safe”.

At about 10 pm on a Thursday night in March 2013 – while he was taking a shower at his company rental at Mission Beach and hearing his mobile ring – he slipped on the bathroom floor while moving into his bedroom to answer it.

On waking at about 4 am to go to work, “he had excruciating pain in his lower back radiating down his right leg”.

It took Ziebarth two months to arrange his first GP consultations but he had seen chiropractor Paul Knight in Brisbane within two days of the incident and underwent four chiropractic treatments over the next week.

WorkCover rejected his claim, contending that he is employment was not a “significant contributing factor to the injury” because the accident occurred in the course of ordinary domestic circumstances while “running” at the worker’s residence.

Not so, ruled Deputy President O’Connor in the Queensland Industrial Relations Commission.

Because the activity that caused the fall – answering the work mobile telephone at all hours of the day and night – was something that was “induced or encouraged” by his employer, the injury sustained must be regarded as having occurred in the course of his employment.

But a finding that the fall had been “a significant contributing factor “to the resulting back condition depended on whether or not the disc protrusion for which he sought compensation, had resulted from it.

The court accepted the evidence of his two chiropractors including Dr Philip Bootle in Innisfail, GP Diane Squarci and spinal surgeon Richard Emery, that the March fall was more likely than not to be the cause of the disc pathology.

“I am satisfied on the evidence of a causal relationship between his employment and his disc prolapse,” ruled Judge O’Connor. “The absence of any competing causal incident leads me to conclude on the balance of probabilities that the appellant’s employment was a significant exhibiting factor to his injury”.

WorkCover’s rejection of his claim was overruled.

Have you been injured at work, in a vehicle accident or in a private or public place? You may have a legal right to personal injury compensation.

Ziebarth v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 121 Deputy President O’Connor 23/06/2015 – view decision

Categories: Personal Injury , Litigation & Law Practice

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