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Subject:                          Occupational Health News 1200: Toll worker's $1.3m damages halved; Vic launches 'WorkHealth', a mental health resource for employers; WorkCover Qld will cover 'Mud Army' volunteers; & more


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Thomson Reuters Australia

Issue 1200 , Wednesday 12 April 2017

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In this issue

Toll worker's $1.3m damages halved due to judicial error


Vic launches 'WorkHealth', a mental health resource for employers


WorkCover Qld will cover 'Mud Army' volunteers


Farmer dies in tip-truck incident


Number plate recognition cameras target fatigued truck drivers




Improved prediction of upper limb musculoskeletal disorder outcome


After stand-up desks, bike desks what next?


'Finely balanced' appeal decided


FWC's maiden interim order prevents sacking in bullying matter


SWA reviews its 2020 strategy


Editorial Team



Toll worker's $1.3m damages halved due to judicial error

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)


Vic launches 'WorkHealth', a mental health resource for employers

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.


WorkCover Qld will cover 'Mud Army' volunteers

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.


Farmer dies in tip-truck incident

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.  


Number plate recognition cameras target fatigued truck drivers

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.



Abstracts from the world's occupational health literature. An occasional series compiled by Dr Graham Hall, MPH, FRACP, FAFOEM, occupational physician.


Improved prediction of upper limb musculoskeletal disorder outcome

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.


After stand-up desks, bike desks what next?

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.


'Finely balanced' appeal decided

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)


FWC's maiden interim order prevents sacking in bullying matter

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)


SWA reviews its 2020 strategy

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.


Editorial Team

Editor: Stephanie D'Souza. Email: Stephanie.D'Souza@thomsonreuters.comJournalists: Helen Jones, Annie Lawson. Managing Editor: Peter Schwab.




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