Issue 1200
, Wednesday 12 April 2017
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In this issue
[1]
The NSW Court of Appeal (CoA) has reduced an award
to former Toll Pty Ltd worker Jay Anthony Harradine to $660,898, down
from the $1,380,166 District Court Judge Raymond McLoughlin had
awarded in March 2016. It flagged the award could be reduced by a
further $400,000 owing to an unrecorded order Judge McLoughlin made
in April 2016. These latest orders followed the
CoA's December 2016 finding that Judge McLoughlin had erred
in his calculations and applying a section of the Motor Accidents
Compensation Act
1999.
Harradine suffered injuries while unloading packages
containing cushions from a 'stillage' onto the upper level of a trailer.
The court heard a 'stillage' is a rectangular metal stand that (in this
instance) was open on two sides and had wire barriers on the other two
sides.
In 2016, Acting Justice Ronald Sackville
with Justices Anthony Meagher and Monika Schmidt agreeing found the
injury had occurred when the stillage, which should have been securely
affixed to the raised tines of the forklift, slid sideways off the tines
and struck the worker's left arm. "It was not in dispute in the
District Court that the operator of the forklift had been negligent in
using the stillage to load the trailer when he knew that it had not been
secured to the forklift's tines. Accordingly, it was not in dispute that
Toll had breached its duty of care to the Worker," Justice
Sackville said.
Toll appealed Judge McLoughlin's primary
decision on the basis he had not provided adequate reasoning and that
Harradine's injury did not fall within the remit of s3A(1)
of Motor Accident Compensation Act
1999. Justice Sackville found Harradine had not proven the incident
satisfied the requirements of a "dangerous situation" under that
section. "The dangerous situation – that is, the risks associated with
the stillage not being properly secured – was not created by the driving of
the vehicle," Justice Sackville found.
He also found Judge McLoughlin had erred in
calculating Harradine's net weekly earning at $1,661 as he failed to take
into account Toll's national human resources and risk manager's evidence
there had been a "phenomena" of increased overtime at the time of
the injury which had tapered off.
Owing to these errors, the CoA justices
unanimously set aside Judge McLoughlin's damages and costs orders and
directed the parties to bring agreed short minutes of order in 2017.
In 2017, the CoA said: "The outcome of the
appeal, as Toll's initial submissions on costs specifically stated, is that
the Worker's damages are to be assessed on the basis that his claim is
'limited to a work injury damages claim'."
In the 2017 submissions, the parties agreed
Harradine's damages for loss of future earning capacity should be $470,408
inclusive of $46,592 for loss of future superannuation entitlements. They
agreed that past loss of earning capacity came to $190,490. However, the
Court noted Toll was entitled to $71,631 credit for workers' compensation
already paid, and noted pursuant to an order Judge McLoughlin had made
in April 2016, a further credit of $400,000. The court ordered
damages for the worker to the sum of $660,898, noting the relevant credit.
It said the parties should bear their own costs.
(Toll
Pty Ltd v Harradine (No 2) [2017],NSWCA 75, 10/04/17)
[2]
The Victorian Government has committed $50m to a
new mental health initiative 'WorkHealth', a program for employers
including a free interactive online platform acting as a "go-to"
site for workplace mental health and wellbeing resources.
A special advisory group including government,
business and union representatives developed WorkHealth.
Creative
industries workers suffer high levels of depression
The special advisory group (above) chairman and
Cancer Council CEO Todd Harper said: "We have drawn on a broad range
of expertise and experience to design WorkHealth, and we are confident it
will make a real difference to lives of Victorian workers."
The government said the site would provide
employers with the latest advice, research and support. It also committed
$17m to an "innovation fund to kickstart [sic] new initiatives and
expand existing workplace mental health and wellbeing programs".
Finance and mental health ministers Robin Scott and Martin Foley launched
WorkHealth at the Arts Centre Melbourne HQ on Tuesday April 10.
The centre leads the 'Arts Wellbeing Collective' – "a consortium
working together to achieve better mental health outcomes for creative
industries workers". The government said creative industries workers
suffer high levels of depression and twice the number of suicide attempts
as the general population.
Launching WorkHealth, Foley said: "We know
around 20% of Victorians are experiencing mental health concerns – this
program will equip the community to have the tools to staying mentally
well. It is essential employers have measures in place that not only
minimise risks to mental health but promote health for employees."
WorkSafe will fund and manage WorkHealth's five
year program with help from the Health and Human Services department. The
program will go live early next year with a public awareness campaign.
[3]
All volunteers registered with the Queensland
Government for Cyclone Debbie clean-up or rescue relief efforts will be
covered by WorkCover, Industrial Relations minister Grace Grace has said.
Coverage will also be offered to anyone volunteering through a third party
on behalf of the government.
The policy will run for an initial period of three
months with a possible extension depending on progress with the recovery.
Grace said in a statement: "Providing this coverage is the least we
can do for these volunteers who are selflessly sacrificing their own time
to help fellow Queenslanders in need."
The cover is for statutory benefits only
"with benefits paid by WorkCover governed by legislation and dependent
on the volunteer's individual employment situation", Grace said.
She said the government wanted to encourage more
people to volunteer while reminding them to stay safe in the field.
"It's very important that volunteers comply
with workplace health and safety requirements to protect themselves against
hazards in flood affected zones. Make sure you wear personal
protective equipment such as chemical resistant gloves, protective eyewear,
closed footwear and long sleeved shirts and pants to minimise exposure to
skin," Grace added.
[4]
A tipper trailer has collapsed onto the cabin of a
farmer's prime mover fatally crushing him within it, WorkSafe Victoria has
said. The incident happened on the farmer's property at The Cove 20km
southeast of Warrnambool.
WorkSafe said: "The trailer had been backed
across a road at right angles to the prime mover and then raised to release
a load of crushed rock when it is believed the wheels on the driver's side
of the trailer slipped off the road's edge. This caused the raised trailer
to tilt sideways and collapse into the driver's side of the cabin."
WorkSafe said it was investigating the incident.
"The death takes the number of confirmed
workplace fatalities this year to eight, one more than at the same time
last year," WorkSafe said.
[5]
Federal transport minister Darren Chester has
announced the rollout of new automatic number plate recognition cameras to
five sites across Victoria's major freight networks, focusing on heavy vehicle
corridors and black spots.
Those sites are: the Hume Freeway at Wallan;
Calder Freeway at Gisbourne; Western Freeway at Ballan; Goulburn Valley
Freeway at Murchison; and the Princess Freeway at Yarragon.
National Heavy Vehicle Regulator (NHVR) CEO Sal
Petroccitto said: "National visibility of vehicle movements will allow
the NHVR and other enforcement agencies to identify drivers and operators
who systematically flout fatigue laws."
He explained the heavy vehicle camera network is
part of the NHVR's national compliance and information system plans
"which will support real time, agency linked, data collection"
used by authorised officers.
NHVR is working with other state road transport
authorities to identify additional camera sites on the busiest freight
routes. Each camera site costs between $200,000 to $800,000 to establish
depending on whether infrastructure, power, communications and security
facilities are already in place.
[6]
Abstracts from the world's occupational health
literature. An occasional series compiled by Dr Graham Hall,
MPH, FRACP, FAFOEM, occupational physician.
[7]
Musculoskeletal (MSK) disorders are a major cause
of workplace sickness absence and perhaps an even bigger contribution to
presenteeism. The best opportunity for successful rehabilitation has been
established to be within three months of sickness absence. Therefore in
order to target complex and expensive interventions at those who can most
benefit it is necessary to identify those most likely to be long-term
disabled.
Factors that determine return to work (RTW)
outcome are complex and may include physical psychosocial and
occupational factors such as type of work, type of injury, individual
beliefs, financial status, the availability of workers' compensation,
management and peer support, job satisfaction, mood, comorbidities and
family circumstances.
The process in Alberta is if injured workers do
not return to work within the expected time following treatment in general
practice or physiotherapy, they are referred for a comprehensive
rehabilitation assessment - usually four to eight weeks from the claim.
Extensive detail is collected at this examination and provides the data for
this study. Of the 8,003 who received workers' compensation rehabilitation
for MSK injuries in Alberta between December 1, 2009
and January 1, 2011, 3,036 had upper extremity problems. Of these
336 were still receiving worker's wage replacement benefits (WRB) - an
indirect measure of RTW - 90 days after their assessment.
Multiple logistic regression analysis was used in
a 'purposeful modelling strategy' with variables that did not significantly
predict WRB at 90 days progressively removed. The objective was to see
whether the addition of the DASH (Disabilities of the Arm Shoulder and
Hand) tool, a 30-item questionnaire, to a model including demographics plus
a health-related quality of life questionnaire (SF 36) and measures of pain
intensity (VAS) and pain related disability (PDI), could better predict
which workers would still be receiving WRB at three months, than the same
data set without DASH. Interestingly DASH Item 23 - that asked "During
the past week were you limited in your work or other regular daily
activities as a result of your arm shoulder or hand problem?" - proved
as effective as the model including the full DASH results. This model was
able to identify three quarters of those still receiving WRB at three
months. This finding is likely to prove very helpful to researchers and
clinicians. Armijo-Olivo
S, Woodhouse LJ, Steenstra IA et al. Predictive value of the DASH tool for
predicting return to work of injured workers with musculoskeletal disorders
of the upper extremity. Occupational
and Environmental Medicine 2016; 73: 807-815. See also Commentary ibid.
805.
[8]
Of some 38 employees of a Brussels Human Resources
firm who volunteered for a study on bike desks 22 chose to be in the bike
group and 16 in the control group. Participants were required to have a
sedentary occupation and not participate in physical activity outside work
for more than 2¿ hours per week. A variety of medical conditions were also
excluded. Baseline data was collected in October 2015 and
repeated in March 2016 - a 20-week study period.
The active group was instructed to cycle on a
height-adjustable bike desk for 8×25 minutes per week and adjust the
cycling intensity to their choice. Height, weight, blood pressure and body
fat percentage were measured. Peak oxygen uptake capacity was measured
during a cycle test to exhaustion. Questionnaires were used to assess work
performance and work engagement. Standard measures of short-term memory
were performed as well as electrophysiological measurements including
reaction time and an EEG.
A significant (6%) reduction in fat percentage (P
= 0.022) was found in the intervention group with no change in the control
group. Work engagement approached significance (P=0.059) with more
engagement in the bike group. There was no effect on work performance. No
significant differences were found in the electrophysiological tests,
specifically no differences in accuracy. While the results of the study
were not spectacular the results show that the use of bike desks can
increase people's daily exercise expenditure and the trend to increased
work engagement is perhaps important. Increased work engagement has been
shown to decrease ill-health and increase life satisfaction. Given present
levels of obesity the provision of bike desks in offices could well be
cost-effective in terms of physical and mental health. Further studies with
higher exercise intensity for longer periods seem indicated. Torbeyns T, de Geus B, Bailey S et
al. Bike desks in the office: physical health, cognitive function, work
engagement, and work performance. Journal of Occupational and
Environmental Medicine 2016; 58 :1257-1263.
[9]
In a "finely balanced" appeal, the Qld
Industrial Relations Commission (QIRC) has ruled an injured mine worker's
employment was not the major significant contributing factor to his
depressive disorder.
Industrial Commissioner Gary Black dismissed
Clermont Coal Pty Ltd dozer operator Paul Ebsworth's appeal against a Qld
Workers' Compensation Regulator's decision.
In his appeal Ebsworth challenged the regulator's
ruling that confirmed self-insurer Glencore Qld Ltd's earlier decision to
reject his w/comp application for the psychological disorder. (Clermont
Coal is a member company of Glencore's w/comp self-insurance licence
in Qld.)
A contested issue centred on Ebsworth's claim that
the accepted physical injury he sustained on April 10, 2015,
while operating a dozer "directly caused" his major psychological
disorder. Ebsworth's injury was described as "an aggravation of
pre-existing degenerative spondylosis".
Ebsworth had sought treatment for his lower back
injury at a Noosa general practice on April 14. Fifteen days
later he lodged his w/comp claim. Glencore initially rejected Ebsworth's
claim but on October 9 the regulator's review unit set aside that
decision. The unit determined the injury claim should be accepted.
Glencore then made weekly payments from the
physical injury date but only to July 10. It reimbursed medical
expenses Ebsworth had incurred up to July 31. It
"capped" his entitlement pending a further medical review.
On November 18 Glencore decided to cease
the claim on the basis the "effects of the aggravation" would
have resolved by July 10. Cmr Black said that meant Ebsworth had
been off work for six months but only received three months' pay.
However, Cmr Black said after Ebsworth's appeal
against his physical injury w/comp payments and benefits being stopped, it
was now accepted the aggravation's effects did not resolve
by July 10. A "treatment failure" had led to Ebsworth's
physical pain "becoming chronic", the cmr said.
In those circumstances, Cmr Black determined
Ebsworth's psychological condition appeal in a context where pain
attributed to the aggravation continued beyond July 10. On the
balance of probabilities it extended up to or beyond Oct 26, 2015, by which
time Ebsworth had been decompensated.
Range of
stressors 'not root cause': worker
Ebsworth (above)
had reported increased levels of anxiety to his GP on June 10,
2015, Cmr Black said. Psychological symptoms were not mentioned again until
an Oct 26 consultation when Ebsworth reported "multiple symptoms of
depression". Four days later the GP issued a w/comp medical
certificate and referred Ebsworth to a psychologist, whom he saw on Nov 2
and 9.
Cmr Black said Ebsworth in his evidence accepted
stressors had negatively impacted his psychological condition. In current
terms, their impact was no "different to what it had been in
2015", he said. The stressors included financial and relationship
difficulties; a loss of work routine, identity and self-worth; Clermont's
failure to support his claim; and delays in his claim being resolved.
"Whatever the range of stressors however, the
root cause of his psychological condition was his back injury, including
the ongoing pain and incapacity."
Cmr Black understood the effect of Ebsworth's
appeal submission was that "factors other than pain and incapacity
should be regarded as exacerbating stressors" for his psychological
condition. It was argued the disorder's underlying cause was "pain and
incapacity for work". The condition preceded what Ebsworth regarded as
the exacerbating stressors.
'Inconsistency
questioned rationale': regulator
In contrast, the regulator "advanced the view
that the timing of [Ebsworth's] decompensation did not support a finding
that pain was the major contributing factor". Any such finding would
be "inconsistent" with the factual matrix prevailing at the time
of decompensation, it said.
Cmr Black said: "What the regulator saw
happening during Oct and early Nov 2015 was an unexplained
deterioration" in Ebsworth's physical condition and an
"unexpected development" in terms of his psychological condition.
"These factors created an inconsistency which questioned the
reliability of the rationale underpinning" Ebsworth's case.
"Coinciding" and "contributing
factors" were ongoing stressors, the regulator submitted.
They included: Glencore rejecting Ebsworth's
physical injury claim; delays in the review process; "resentment"
caused at Clermont's belief the injury was not work-related; Glencore's
surveillance activities; Ebsworth's "paranoia" about surveillance
and other "covert activities"; Clermont's refusal to provide
light duties; and Glencore's decision to "limit compensation".
Cmr Black said the regulator believed it
"more probable than not" that Ebsworth's "dissatisfaction or
anger related to these issues that caused his decompensation".
Drawing a
distinction 'unnecessary': cmr
Ultimately, Cmr Black(above) considered the psychologist who
assessed Ebsworth on Nov 27 at Glencore's request had reached a "better
reasoned" conclusion than the psychologist to whom Ebsworth's GP had
referred him on Nov 2. Her approach was "more consistent with the
history provided", the cmr said. When she assessed Ebsworth on Nov 27
she considered "there were a number of substantial contributing
factors" to the development of his psychiatric condition.
Cmr Black said it was "unnecessary" for
him to decide whether a distinction should be drawn between stressors
related to Glencore as the self-insurer and those related to Clermont as
the employer.
There was "sufficient" in the GP's and
two psychologists' medical records to establish that action Glencore took
"constituted stressors of substance". They would have made an
important or significant contribution" to the development of Ebsworth's
disorder, the cmr said.
Glencore's actions "did not exclusively
cause" Ebsworth's injury, Cmr Black said. The association between its
actions and the injury was "sufficient to support a finding" that
the injury arose out of, or in the course of, Glencore's action in
connection with Ebsworth's application for compensation.
Cmr Black said there could only be one major
significant factor. Had Ebsworth succeeded in satisfying the Qld W/Comp and
Rehabilitation Act's
s32(1)
major significant contributory factor test for a psychiatric or
psychological disorder, Cmr Black said the injury "would have been
removed from s32(1)
by virtue of the operation of s32(5)(c)
of the Act". S32(5)(c)
excludes a psychiatric or psychological injury arising out of, or in the
course of, "action by the regulator or an insurer in connection with
the worker's application for compensation".
Cmr Black ordered the matter of costs be reserved.
(Ebsworth v Workers'
Compensation Regulator [2017], QIRC 028,
05/04/2017, decn posted online 10/04/2017)
[10]
The Fair Work Commission (FWC) has handed down its
first interim order preventing a TAFE institute from dismissing its
executive director to enable her to proceed with a bullying matter against
her employer. Commissioner Peter Hampton granted Lynette Bayly an interim
order preventing the Bendigo Kangan Institute, trading as Bendigo TAFE,
Kangan Institute (BKI), from finalising an investigation into her conduct.
The order also banned BKI from imposing disciplinary sanctions on Bayly
including sacking her.
On March 10, 2017, Bayly applied for a
stop bullying order under s789FC
of the Fair Work (FW) Act
alleging she was bullied by senior executive staff members. She claimed
misconduct allegations were made against her after she complained about one
of the executives.
Bayly contended the "allegations and the
investigation that followed are acts of unreasonable behaviour, and that
this conduct, along with other alleged behaviour by senior leaders of the
employer constitutes workplace bullying".
The January 31 investigation constituted
bullying, Bayly alleged.
Stand down
'reasonable management action'
BKI disputed Bayly's claims, arguing the
investigation and any proposed disciplinary action represented reasonable
management actions. It denied Bayly was bullied by senior executives.
On April 2, 2017, Bayly applied for an
interim order under s589(2)
of the FW Act
ahead of a conference before a FWC member scheduled for April 3.
Meanwhile, BKI informed Bayly it had made draft
findings as part of its investigation.
A diagnosis of depressive illness rendered Bayly
unfit for work from March 30 to April 23.
BKI informed Bayly via a March 28 letter
she had been stood down and was required to attend an April 3
meeting to respond to its draft findings before the investigation was
finalised.
A March 30 letter Bayly's solicitors
sent to BKI enclosed a medical certificate and sought an undertaking it
would not require she respond to allegations, attend the meeting or impose
disciplinary action.
BKI declined to adhere to the undertaking.
Bayly argued in the absence of interim orders she
would be dismissed, which would prevent her bullying application from being
considered.
BKI argued the investigation "could not have
been carried out in a more reasonable manner" given it was conducted
by an independent third party over seen by the board and not anyone named
in the bullying matter. The March 28 letter to Bayly was the
sixth time BKI had requested she respond to the investigation draft
findings.
"The Commission is being asked to
prospectively injunct BKI from possibly dismissing Ms Bayly," it said.
"That is, to essentially use the anti-bullying jurisdiction to step in
and prevent a possible adverse action, without consideration as to whether
that dismissal is justified.
BKI says it had
no evidence of Bayly's medical condition
The letter (above)
continued: "The orders sought go beyond what would ordinarily be
available in relation to an anti-bullying application and should not be
made." BKI said the investigation preliminary findings "indicated
that there was substance to the allegations against Ms Bayly" and
should also be taken into account. It claimed to have no evidence of
Bayly's medical condition and given she was not at work there was no risk
of future unreasonable conduct to form the basis for an anti-bullying
order. Bayly could access other remedies in the event she was dismissed,
ending her s789FC
application, BKI argued.
'Considerable
caution' required for early intervention
Cmr Hampton said interim orders "would not be
issued lightly". "The direct intervention of the Commission at
such an early stage of proceedings should be exercised with considerable
caution," he said. "As BKI contended, the Commission should be
alert to the undesirability of permitting the anti-bullying jurisdiction to
simply be used to circumvent reasonable disciplinary action and its
consequences. In this case, there are some particular circumstances that
have justified the making of the interim order."
Cmr Hampton said Bayly's dismissal would
"significantly compromise, and potentially deny, her capacity to have
the s789FC
application heard and determined". "In the absence of interim
orders, this was a very real prospect given all of the particular
circumstances evident here and the stated intention of BKI," he said.
"This is a significant factor directly relevant to the balance of
convenience and the exercise of any discretion." He acknowledged such
an order would create an obligation for BKI to maintain Bayly's employment
when in the "normal course it would be open for it to dismiss her,
subject to various notice and other obligations".
"Bayly is presently unable to attend for work
and the Commission should be able to advance its consideration of the s789FC
application in the period covered by her present medical certificate,"
Cmr Hampton said.
'Balance of
convenience' favours interim order
Cmr Hampton was satisfied that "in the
particular circumstances of this matter, the balance of convenience was
firmly in favour of the Interim Order being made".The order's scope
was limited to the events that led to the application for interim action,
but the "restraint on dismissal is however more broadly expressed
given the circumstances of this matter and the implications for the
substantive application", Cmr Hampton said. It granted a "broad
liberty to all parties to seek the variation or rescission of this Order
upon application," he said. "Once the Commission commences to
more substantively engage with the s789FC
application, a more informed view about whether the disciplinary process
properly formed the basis for that application or other changed circumstances
could also lead to such a review," he said.
Cmr Hampton said the substantive s789FC
application will be re-assigned to a Melbourne-based member, including any
applications to revise or rescind the interim order that "might be
made pending the determination of the matter".
(Lynette
Bayly [2017],FWC 1886, 5/4/2017)
[11]
Consultation has commenced with government bodies,
unions, industry associations and work health and safety professionals and
academics for a mid-term term review of the Australian Work Health and Safety
Strategy 2012-2020, Safe Work Australia said. The review's outcomes will be
published in late 2017.
The review will examine:
·
Examine how the
strategy has influenced work health and safety activities;
·
Evaluate whether
the key elements of the strategy can continue to drive safety improvements;
and
·
Identify areas of
work health and safety that require greater attention over the next five
years to achieve strategy's vision.
[12]
Editor:
Stephanie D'Souza. Email:
Stephanie.D'Souza@thomsonreuters.comJournalists:
Helen Jones, Annie Lawson. Managing
Editor: Peter Schwab.
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