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Australian widow entitled to compensation for husband’s death in Chinese hotel gym

Australian widow entitled to compensation for husband’s death in Chinese hotel gym
February 21, 2022

A South Australian employment tribunal has ruled the family of a mining executive who suffered a fatal heart attack while exercising in the gym of a Chinese hotel during a business trip should be eligible to apply for compensation, because the exercise was conducted with "the implied encouragement" of the man's employer.

Erik Palmbachs, aged 60, suffered a fatal heart attack in November 2018, while exercising at the Marriott Hotel in Hangzhou.

Palmbachs had taken up a position as Chief Financial Officer with Core Lithium about a month earlier, and was on a business trip for his employer.

As reported by the ABC, his widow Denise sought compensation, but the claim was knocked back by statutory authority and insurer ReturnToWorkSA, and the dispute was then referred to the South Australian Employment Tribunal (SAET).

In a judgement, SAET Deputy President Miles Crawley found that the very presence of a gym at the hotel was evidence in the family's favour, with Judge Crawley noting "(it) seems obvious that the employer would have accepted and expected the worker to make use of the hotel facilities including the gym."

The tribunal heard that, on the morning of 12th November 2018, the executive, who had "developed severe and extensive coronary artery disease" over several years - was exercising alone at the hotel gym when he suffered a coronary rupture.

He was taken to Hangzhou Hospital but was pronounced dead.

The tribunal heard evidence from both parties, and a lawyer for Denise Palmbachs argued that her husband's injury "arose in the course of employment", which was "presumed to be a significant contributing cause".

In his judgement, Judge Crawley wrote "the applicant asserts that the employer's encouragement to undertake the activity can be implied from the fact that the worker was provided with hotel accommodation which included a gym."

That claim was challenged by ReturnToWorkSA, whose lawyer contended "the gymnasium workout was not an activity induced or encouraged by the employer".

Judge Crawley considered whether the workout constituted a "social" or "sporting activity", which would have exempted it from classification as a compensable injury, but ruled in favour of the family.

Judge Crawley determined that, by arranging accommodation with a gym, the executives's employer had encouraged him to use the facility.

He added that "by providing hotel accommodation complete with gym facilities, I consider the employer induced or encouraged the worker to use the gym and therefore to engage in the activities he was performing at the time of his death."

Judge Crawley concluded that the "rejection of the applicant’s claim must be set aside".

The amount of compensation has yet to be determined.

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