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Workplace Insurance and Safety E-update - February 2017

E-updates
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Counselling session was reasonable management action

Counselling session was reasonable management action; Consequential condition claim rejected for failure to provide sufficient evidence of ‘overuse’ activities; Host employer liable for worker’s back injury; Employer fined after cutting corners.

Workers' Compensation

“Counselling session was reasonable management action”

Haskins and Comcare (Compensation) [2017] AATA 8

Executive summary
The Applicant made a claim for compensation for a psychological injury as a result of a counselling session held in response to a complaint about her conduct.

It was held that the counselling session was reasonable administrative action taken in a reasonable manner.

Background
Janine Haskins (the Applicant) was employed by the Australian Capital Territory (ACT) Office of Director of Public Prosecutions (the Respondent).

In June 2014, the Respondent received a complaint about the Applicant’s conduct. The Respondent undertook an evidence gathering process about the complaint and determined that the Applicant had engaged in misconduct, which would be addressed informally in accordance with the Justice and Community Safety Enterprise Agreement 2011-2013 (the Agreement).

The Applicant was invited by the Respondent to attend a counselling session. The Applicant claimed that during this session the Director of Public Prosecutions (DPP) raised his voice and swore at her.

The Applicant made a claim for compensation for a psychological injury by way of generalised anxiety disorder as a result of the counselling session.

Comcare conceded that the Applicant’s psychological condition was a disease injury, which was contributed to by her employment and in particular the counselling session. However, Comcare relied upon section 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to dispute the claim on the grounds that the injury was suffered as a result of reasonable administrative action (reasonable disciplinary action) taken in a reasonable manner in respect of the employee’s employment.

Decision
In Senior Member Popple’s opinion, the DPP’s conduct during the counselling session was professional and his behaviour appropriate. SM Popple noted that the Applicant’s perception of the counselling session was in marked contrast to the accounts provided by other attendees who gave evidence that the DPP was professional and did not raise his voice or swear at the Applicant.

SM Popple determined that it was reasonable for the Respondent to undertake the counselling session with the Applicant. The Applicant made some admissions during the evidence gathering process and the Respondent was obliged to take action in accordance with the Agreement.

Accordingly, SM Popple concluded that the counselling session was reasonable management action taken in a reasonable manner and confirmed that no compensation was payable in respect of the Applicant’s injury.

Comment – what can your business learn from this decision?
To demonstrate reasonable management action was taken in a reasonable manner, it is important that employers have evidence available which supports this defence and that they provide the evidence to their workers compensation insurer at the earliest possible opportunity. Such evidence could be in the form of meeting file notes, witness statements, action plans and/or letters between the employer and worker.

 

“Consequential condition claim rejected for failure to provide sufficient evidence of ‘overuse’ activities”

Lukac v Berkeley Challenge Pty Ltd t/as Spotless [2016] NSWWCCPD 56

Executive summary
On Appeal, a worker’s claim for compensation for a consequential injury was rejected because the worker failed to prove to the requisite standard that she over used or increasingly relied on her left arm to guard an accepted right shoulder injury.

Background
In 2002, the worker, who was employed as a cleaner sustained a right shoulder injury when she was lifting a backpack vacuum cleaner onto her shoulder at work. In 2006, she was awarded compensation for whole person impairment (WPI) associated with that right shoulder injury.

In 2010, the worker made another claim for an additional 2% WPI, which was resolved by way of a Complying Agreement.

In May 2015, the worker made a further claim for WPI, this time, for injury to her left shoulder, which she alleged was consequential upon the existing injury to her right shoulder. The worker claimed that the left shoulder injury was the result of overuse of her left shoulder caused by guarding her right shoulder injury.

The employer’s insurer denied liability for the left shoulder injury, maintaining that it was not a consequential injury and was not related to the worker’s employment.

Arbitrator’s decision
At first instance, the Arbitrator found that the alleged left shoulder condition was not a condition consequential of the accepted right shoulder injury. The Arbitrator concluded that there was no evidence of the worker placing increased reliance on her left arm to protect her right shoulder injury, nor was there any evidence of the activities resulting in the alleged overuse.

In particular, the Arbitrator found that:

  • On the worker’s own evidence, she had not performed any arduous or heavy work since the 2002 right shoulder injury;
  • The worker’s statements said that she had reduced the amount of gardening she performed and her social activities and advised that her family performed most of the housework;
  • One of the worker’s doctors reported that she would frequently lie down and tended to rest during the day and that her daughters performed most of the housework;
  • Another of the worker’s doctors based his opinion on an incorrect history of her left shoulder condition, citing the backpack vacuum cleaner as its cause;
  • The opinion of the insurer’s doctor was to be preferred. Specifically:
  • the worker gave a history of overall reduced physical activity, not increased use of the left arm, therefore, there was no identifiable circumstances to account for the alleged over use; and
  • the MRI investigations showed that the left shoulder condition was due to degenerative changes and was not consequential to the right shoulder injury or work related.

Accordingly, the Arbitrator rejected the worker’s claim for compensation pursuant to a consequential condition.

Presidential decision
On Appeal to a Presidential Member of the NSW Workers Compensation Commission, the worker argued that the Arbitrator had erred by:

  1. Misunderstanding and misquoting the evidence provided by one of the worker’s doctors and had wrongly concluding that the doctor’s opinion was based upon an incorrect history of the worker’s left shoulder condition;
  2. Incorrectly preferring the evidence of the insurer’s doctor; and
  3. Concluding that there was not enough evidence to support a finding of a consequential injury.

In relation to appeal point (i) – Judge Keating found that although the Arbitrator did slightly misquote one of the worker’s doctors in his decision, the Arbitrator did not misunderstand the doctor’s evidence and his findings on that evidence were open to him to make.

In relation to appeal point (ii) – Judge Keating also rejected the worker’s submissions, noting that the insurer’s doctor had all the relevant material available to him and there was no reason for rejecting the doctor’s opinion.

In relation to appeal point (iii) – Judge Keating found that the worker had failed to discharge the burden of proof in relation to establishing a consequential injury. Judge Keating noted that the employee provided three statements and had every opportunity to identify the activities she claimed led to the condition in her left shoulder but instead chose to limit her evidence to “a vague allegation of favouring the left shoulder ‘over the years’”. Judge Keating added that the employee made no attempts to identify any particular activities that constituted over use or the frequencies of such activities.

Judge Keating held that the Arbitrator’s findings were open to him and that no error had been established by the worker. Accordingly, the Arbitrator’s decision was confirmed and the Appeal was dismissed.

Comment – what can your business learn from this decision?
When arranging for a worker to be medically examined make sure the doctor is provided with medical evidence obtained by both parties. Doctors should also be provided with a detailed factual background and directed to address any inconsistencies in the factual and medical evidence as part of their report.

 

Work Health & Safety

“Host employer liable for worker’s back injury”

Alan Donald v Rail Corporation of New South Wales (No 11) [2016] NSWSC 1897

Executive summary
A labour hire worker suffered injury as a result of performing heavy manual work.

The New South Wales Supreme Court found the host employer and labour hire company liable for failing to have a safe system of work, which included structured task rotation.

Background
Mr Alan Donald (the Plaintiff) was employed by Staff Innovations Pty Ltd (Staff Innovations) and on-hired to Rail Corporation New South Wales (Rail Corp) to perform maintenance work on the Sydney City Circle railway line. The work for Rail Corp involved removing old sleepers with jackhammers and associated manual tasks.

The Plaintiff claimed he suffered injury to his back in May and June 2008 (a left sided disc prolapsed) as a result of the nature and conditions of his employment with Rail Corp.

The Plaintiff argued that both Staff Innovations and Rail Corp failed to institute and maintain a safe system of work, which included task rotation and claimed he was partnered with a Rail Corp employee who was not required to use the jackhammer.

Rail Corp submitted that there was a safe system of work rotation in place where in teams of two, workers were rotated between the tasks and required to take breaks for up 20 minutes after using the jackhammer.

Rail Corp and Staff Innovations denied the Plaintiff suffered injury at work and argued that the alleged injury resulted from a non-work related assault in 2001.

Staff Innovations submitted that although it had a non-delegable duty of care as the Plaintiff’s direct employer, it was not negligent, as it could not control the exercise of the work. Staff Innovations argued that Rail Corp was in control of the worksite, the work to be performed and the system of work.

Decision
Campbell J was not satisfied that the Plaintiff suffered a back injury in 2001 or in June 2008 but was satisfied that the Plaintiff did suffer injury in May 2008.

In relation to whether Rail Corp was liable for the Plaintiff’s back injury, Campbell J held that there was no doubt that Rail Corp owed the Plaintiff a duty of care similar to that owed by an employer to an employee.

The evidence showed that Rail Corp did not have a formalised system for rotating tasks, as workers were left on their own to take breaks and rotate tasks. The Plaintiff would have been required to perform the tasks on his own and as the tasks were not shared, he did not benefit from the necessary breaks.

Campbell J was satisfied that there was a reasonable foreseeable risk of injury and held that there having a work rotation in place would have eliminated or substantially reduced the risk of harm. Accordingly, Campbell J determined Rail Corp to be negligent, as it failed to institute and maintain a safe system of work.

Similarly, Campbell J found that Staff Innovations should have inquired about the conditions of work for its workers, including the Plaintiff. In this way, it was held that Staff Innovations breached its duty to provide a safe system of work to the Plaintiff.

Orders were made for Rail Corp to pay the Plaintiff $1,132,579 and for Staff Innovations to pay the Plaintiff $774,379.

Comment – what can your business learn from this decision?
Labour hire and host employers have a duty of care to ensure the safety of workers.

This decision confirms that labour hire employers cannot assign this duty to the host employer but must take appropriate measures to check that safe systems are in place for their workers.

Where safety systems or work method statements are in place, it is important that they are clearly communicated to workers, adhered to and enforced.

 

“Employer fined after cutting corners”

SafeWork NSW v Bustin’ Free Earthworks Pty Ltd [2017] NSWDC 9

Executive summary

  • The “controlling mind” of Bustin’ Free Earthworks Pty Ltd (the Employer) failed to adequately secure the walls of a deep trench, which led to the trench collapsing and trapping the manager and a contractor.
  • The Employer was charged under sections 19(1) and 32 of the Work Health and Safety Act 2011 (NSW) (WHS Act).
  • The Employer was fined $90,000 and order to pay $15,000 in costs (and received a 25% discount for an early guilty plea).

Background
On 11 December 2014 the Employer was contracted by Bathurst Regional Council to undertake work, including the excavation and installation of sewer mains. The contracted work involved trenching, the laying of sewer lines and the covering the trenches after the lines had been laid.

The Employer’s onsite manager was responsible for making the decisions in relation to the work methods used and directed all workers who worked at the site.

The onsite manager was the Employer’s “controlling mind”.

In January 2015, the onsite manager and a contractor were laying pipes into a deep trench, dirt fell, which buried the laser they were using to indicate the level to lay the pipes. Whilst digging for the laser the trench wall collapsed, trapping the onsite manager’s right leg and completely burying the contractor. Just prior to the collapse, the contractor had advised the manager that it was too dangerous in the trench and they needed to get out.

Both the onsite manager and the contractor were freed but suffered serious injuries.

Safe Work NSW prosecuted the Employer for breaches of the WHS Act and WHS Regulations, including, clause 305 of the Regulations, which specifies an obligation to manage the risks to health and safety associated with excavation work and clause 306, which provides for additional controls associated with trenches.

Decision
The District Court of NSW determined that in addition to breaches of the WHS Act and Regulations, the Employer had breached the “Excavation Work Code of Practice” (the Code). The Court observed that the Code:

  • Set out a number of requirements for excavation work;
  • Specified that ground collapse is one of the primary risks to be controlled in excavation work; and
  • Listed appropriate control measures which the Employer failed to adopt.

The Court found that the onsite manager’s mind was directed to the dangers in the trench and that he was aware of the risks and potential consequences of the trench collapse (from the toolbox talks that were held earlier that morning). The Court concluded that the risks and consequences were obvious to the controlling mind and even if they were not, they were clearly specified in the Code.

The Court observed that there were measures reasonably available to the Employer which, if implemented, would have avoided the risk of the trench collapsing, including:

  • Obtaining a geotechnical report (prior to digging the trench);
  • Ensuring the trench was properly benched, battered or shored; and
  • Ensuring the provision and proper use of appropriate shoring boxes when working in the trench.

The Court considered that whilst excavation collapses were rare, it was a one-off “form of oversight or inattention” by the Employer. This was reinforced by the fact that the onsite manager responsible for implementing safety was a safety conscious person and was aware of the risk of the task being performed.

The Court found that the foreseeability of the risk of injury and consequences was obvious. Further, the risk of injury and consequences were known to the Employer for a long time and were clearly spelled out in the Code. The Court also took into account the Employer’s early guilty plea. In light of these factors, the Court fined the Employer $90,000 and ordered it to pay the Prosecutor’s costs in the sum of $15,000.

What can your business learn from this decision?
Employers should remind their “controlling minds” of their work health and safety obligations, including the importance of their safety decisions and to ensure they are aware of the accepted processes and procedures.

Employers must stay up to date and informed about all applicable SafeWork Australia Codes of Practice, Additional Guidance Material and Fact Sheets to ensure compliance, to avoid WHS prosecutions and to ensure, as far as reasonably practicable, safe systems of work, safe plant and equipment, a safe work environment and ongoing training, instruction and supervision to all workers.

 

Sydney FC & Workplace Law

Everyone at Workplace Law congratulates the Sydney FC W-league coaches and players on making the W-league finals this season. We are so proud of the effort shown by the players during the season and of how well the players represented the Club and sponsors on and off the field.

 

Jokes

Q; Why should you never breakup with a goalie?
A: Because they are keepers!

Q; Why are giraffes so slow to apologise?
A: It takes them a long time to swallow their pride.

 

Should you require any further information or assistance, please contact our Director Shane Koelmeyer on (02) 9256 7500 or via email on sydney@workplacelaw.com.au.

Information provided in this update is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this update, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

 

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