Normally, any worker injured whilst working in NSW is entitled to make a claim under the Workers Compensation Scheme, and receive their statutory entitlements.
However, the Personal Injury Commission of New South Wales recently had to consider whether a worker, who was stabbed whilst working, was able to receive such entitlements, when there was a possibility that the assault occurred whilst he was selling drugs during work hours.
Facts
The worker was employed by a Council in the Greater Sydney Area as a Team Leader in the Parks Department.
The worker was working in a Council park when he was approached by an individual and stabbed 4 times. A Workers Compensation Claim was lodged, and initially accepted by the insurer.
However, the claim was then denied by the insurer, on the basis that the injury did not arise out of, or occur in, the course of the worker’s employment. This was because the insurer had come into possession of evidence which suggested that the worker had previously been involved in selling illegal drugs in the park, during work hours.
The worker admitted to previously selling drugs in the park, however, he also stated that he was not doing this at the time of the incident. Nonetheless, the insurer maintained its denial of the claim.
Proceedings
Due to the insurer’s denial, the worker commenced proceedings in the Personal Injury Commission of New South Wales. The key issue was whether the worker was injured as a result of, or during, his employment.
The Personal Injury Commission found in favour of the Council, as it was of the view that the worker was not “working” when injured, because he was more likely than not involved in illegal drug sales when he was stabbed.
The worker appealed this decision to the President of the Personal Injury Commission, on the basis that he was working at the time of the injury. He submitted that whilst he had previously been involved in selling illegal substances “at work”, he was not doing this at the time of his injury.
The worker was successful in this appeal. The President found that the insurer failed to prove that the assault occurred whilst the worker was selling drugs, and was only able to infer that it incurred in such context. As such, prima facie (at first glance), the worker was working at the time of the stabbing, and was thus entitled to compensation.
Key Takeaways
This decision highlights the importance of insurers needing to prove, and not just infer, that injuries are not work-related in order to deny claims on a sound legal basis.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
