On 25 January 2011, the applicant, Ms Behme, suffered a
compensable back injury, after transferring a heavy patient while
working at Royal Perth Hospital (RPH).
On 9 October 2012, Ms Behme was involved in a motor vehicle
accident that did not arise in the course of her employment.
However, she submitted that the workplace injury was a material
contributing cause to the incapacity she experienced after the
motor vehicle accident because her existing back symptoms
RPH argued Ms Behme's incapacity after the motor vehicle
accident did not result from the injury of 25 July 2011 and was not
a material contributing cause to her incapacity after the
The arbitrator allowed Ms Behme's claim in part, finding
that the incapacity resulted from the 25 July 2011 injury; however,
weekly payments for deemed total incapacity, partial incapacity and
statutory expenses were disallowed.
The arbitrator was not persuaded the motor vehicle accident was
a supervening factor which displaced the original injury as the
cause of the incapacity.
Ms Behme sought leave to appeal from the arbitrator's
decision claiming that, because the arbitrator found it would not
be reasonable to expect her to sell her labour elsewhere for the
period of incapacity, the arbitrator erred in law by failing to
provide adequate reasons for not ordering weekly payments or
partial payments after 15 November 2012.
RPH cross-appealed on the grounds that the primary court erred
in applying an incorrect legal test;
by erroneously applying the principles of Pollock v Wellington
(1995) 15 WAR 1 and finding that the evidence of Dr Thompson did
not satisfy those principles;
by failing to take into consideration relevant evidence;
by failing to provide, any or any adequate reasons for
concluding that the motor vehicle accident on 9 October 2012 did
not displace the original injury as the cause of the
The learned Judge agreed with Ms Behme and granted weekly
payments for total incapacity on the basis of the employer
declining to utilise her actual capacity, which was restricted for
the period 15 November 2012 to 12 December 2012. However, he
dismissed her other claims.
The judge agreed with RPH's ground of cross-appeal, that the
arbitrator's reasoning process was not applied to the correct
test and this led the arbitrator to err in law. However, he
dismissed the other grounds of cross-appeal.
The learned Judge then ordered that the matter be re-heard
before another arbitrator.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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