We hope you enjoy the first edition of the Workplace Law Safety E-Update.  This new update will cover topical Workers Compensation and OH&S issues and offer you practical ‘tips’ to assist you in your work and workplace generally.

OCCUPATIONAL HEALTH & SAFETY
The Dangers of YouTube
Following on from our discussion in the October E-Update regarding the implications of Facebook and MySpace …

This month, a Victorian worker’s forklift licence was cancelled and he has lost his job after he filmed himself performing dangerous stunts on a company forklift and then posted the footage on YouTube.  The clip entitled “How 2 pass you forklift licence” showed the worker doing burnouts, wheelies and crashing into concrete pipes was viewed by his boss.  The worker was subsequently sacked for misconduct.

The worker’s own video clip (filmed with his mobile phone) was used to prosecute him.

The worker pleaded guilty to one count of failing to take reasonable care for his own health and safety and placing himself at serious risk (during the stunts the worker failed to wear a seatbelt, sped forward while looking sideways at the camera and had no control of the forklift) pursuant to s.25(1) of the Victorian Occupational Health and Safety Act 2004.

The Court ordered the worker to complete 50 hours of unpaid community service and undertake a five day OHS course.

WORKERS COMPENSATION
Injury Management Disputes in the NSW Workers Compensation Commission
Workplace Law has recently acted in a matter which shows the benefit of the, to date, infrequently used, injury management dispute procedures within NSW Workers Compensation Commission (WCC).

Background
There was no dispute that the worker had suffered a work related injury during the course of his employment.  The employer (self insured) provided the worker with suitable duties as part of ongoing Return to Work Plans.

However, even though the employer offered lighter duties so the worker could increase his hours, the Nominated Treating Doctor (NTD) refused to upgrade the worker to the point where he could work his normal hours.

The employer had the worker examined by a medical specialist who was of the opinion that the worker could perform the lighter duties on a full time basis.

The employer had twice written to the NTD asking for his opinion as to whether the worker could be upgraded to normal hours and the NTD had failed to respond to these requests.

The Dispute
On behalf of the employer we filed an injury management dispute in the WCC identifying the following issues in dispute:

1. The workers capacity to work.
2. The lack of cooperation by the NTD in responding to the employer’s requests for medical reports and opinion regarding a return to work.

The Result
On being advised that a dispute had been filed in the WCC and that he had been named as one of the causes of the issues in dispute, the NTD provided an up-to-date medical report indicating that the worker could increase his hours on the lighter duties.

The parties were then able to negotiate an agreement that provided orders that the worker agreed to increase his hours to his normal 8 hours per day on the lighter suitable duties.

At our request the Commission also reminded the NTD of his obligations under the Act and Regulations to comply with reasonable requests for reports and up-to-date medical opinion concerning the worker’s injury and fitness.

Finally as the Applicant employer was successful in their Application it was agreed that the worker would have no costs of the proceedings apart from payment of the NTD’s medical report.

Lessons to Learn
The role of the NTD is becoming increasingly important in workers compensation claims.

The best efforts of rehabilitation providers, insurers and employers to get workers back to work can amount to nothing if the NTDs do not fully participate in the process.

Quite often employers and insurers are faced with situations where NTDs do not respond to their requests for reports, avoid telephone calls, or just simply ignore any contact from the employer or scheme agent.

It is now clear that employers and insurers do not need to be frustrated by this situation. Injury management disputes can be filed in the WCC in order to obtain the assistance of the WCC by for example (1) getting the NTD to cooperate and participate in the process properly, or (2) by having a situation where a recommendation could be made that a worker should seek a different treating doctor who will participate in the process; or (3) by appointing a Injury Management Consultant (IMC) to review claim.

We suggest that whenever you request a report from an NTD you give them a certain time frame, say 7 days, within which to respond.  If you do not have a response then you should seek legal advice on filing an injury management dispute.

Whilst the above example was successfully negotiated and resolved between the parties, as stated above, the WCC has the power to appoint an independent IMC who will review the whole claim and liaison with all the relevant parties including the doctors involved.  The IMC then makes his/her own recommendations to the Commission.  The Commission will then make recommendations to the parties as to how the claim should progress.  The parties either accept the recommendations or the matter can be referred to an Arbitrator for determination.

If you have any claims where you had difficulties contacting NTDs or obtaining their co-operation, we encourage you obtain legal advice as to whether it is appropriate to file an injury management dispute in the WCC.

Stay tuned for the December editions of the Workplace Law Safety law e-update and Workplace Law Employment law e-update.

For further information or advice please contact Shane Koelmeyer or Amanda Fetherston on (02) 9256 7500.