Newsletter 

Q2 - 2019  April - June

# Can you claim compensation for an injury that occurred before the start of your shift? 

# Don't get caught double dipping

# Victorian business owner sent to jail for OHS offence.

# Reinforcements needed at Queensland Hospital      

# Guilty for the actions of a subcontractor 

# Even SafeWork NSW can get it wrong.

Can you claim compensation for an injury that occurred before the start of your shift? 

An employee, working for McDonald’s in QLD was required by the employer to be present at the work place, ten minutes before the commencement of the shift. Whilst waiting for her shift to start, the employee climbed up a ladder to get to the roof to have a cigarette. Whilst climbing back down she fell and broke her right leg. This all took place before the start of her shift, and climbing the ladder was never part of her duties. 

A recent decision from the Industrial Court of Queensland has ordered the acceptance of a workers’ compensation claim after WorkCover had previously rejected the claim claiming that while the injury occurred at her place of work, it was not in course of her employment or associated in her duties. 

Reference Mandep Sarkaria v Workers’ Compensation Regulator [2019] ICQ 001 the Industrial Court of Queensland.

Don't get caught double dipping

'Double dipping' at the dinner table is impolite and may not grt you invited again.  In the work force, the consequences can be far greater, including getting a criminal record.

Case 1:-

The offender suffered a finger injury in July 2015 while working as a plumber. He returned to work soon after and continued to work until February 2016 when he ceased work because of alleged stress and anxiety related to his original injury. He continued to receive weekly payments of compensation.

In May 2016 he set up his own business under the name and between January 2017 and February 2018, while working doing renovations, the offender received $29,158.00 in weekly payments of compensation.

The offender pleaded guilty and was convicted and placed on a 12 month adjourned undertaking. He was also ordered to pay $2,712.05 in costs. The offender repaid the full amount of $29,158.00 prior to the hearing.

Case 2:-

The offender suffered a back injury in November 2016. He lodged a claim for compensation which was accepted. While he was receiving weekly payments the offender started his own business of electrical testing and tagging.

Between March and November 2017 he earned $535 from his business and did not disclose this activity to his doctor or to the claims agent. The offender obtained $5,000 to which he was not entitled.

The offender pleaded guilty and was without conviction sentenced to pay a fine of $1,000.00. He was also ordered to pay $5,000 in restitution.

Case 3:-

The offender had suffered a hip injury in 1998, which continued to deteriorate resulting in multiple surgeries. In 2003 he had started his own business, Classic Tilt Tray Service. Following further surgery in 2016 he ceased work and resumed receiving weekly payments of compensation. Surveillance in late 2016 indicated that the offender had returned to work in his own business and failed to declare this to the agent or his GP.

The offender pleaded guilty and was without conviction sentenced to pay a fine of $2,000.00. He made full restitution of $36,824.00 prior to the hearing.

Victorian business owner sent to jail for OHS offence.

Jan 2019

A South Gippsland woman has become the first person in Victoria to be sentenced to jail under Worksafe Victoria duty laws for recklessly endangering a worker.

Maria Carla Jackson, 72, was convicted and sentenced to six months' jail in December 2018 after the death of a man at her scrap metal yard in Foster, south-east of Melbourne.

Employee Robbie Blake was killed when he fell three metres from a raised forklift and was hit by a falling bin in February 2017.

Ms Jackson was driving the forklift at the time.

She pleaded guilty to breaching the Occupational Health and Safety Act by failing to comply with her duty as a self-employed person not to expose other people to risk.

Ms Jackson also pleaded guilty to the more serious offence of recklessly engaging in conduct that placed others in danger of serious injury.

The court heard that "The worker, was inside a bin, removing scrap steel when Ms Jackson lifted it with a forklift." "The bottom of the bin gave way, causing the worker to fall through and the bin and steel then fell on him."

Jackson appealed against the sentence and was granted bail but withdrew her appeal on January 21, 2019.

She was fined $10,000 and ordered to pay $7,336 in court costs.

Reinforcements needed at Queensland Hospital 

Jan 2019

A nurses' lobby group has called on a Brisbane hospital to improve security after staff reported being exposed to violent patients.

The state's peak nursing lobby group says nurse reports of the violence have prompted it to call on Princess Alexandra Hospital to bump up the quality of security staff.

Nurses are being exposed to violence from out-of-control patients, some of whom are drug-affected and appear to have "almost superhuman strength."

PA is now looking at bringing security back in-house so they can train the staff to deal with violent patients.

https://www.news.com.au/national/breaking-news/violence-prompts-qld-hospital-review/news-story/c3d755695b5764342ceacca191fe2ad9

Guilty for the actions of a subcontractor

Dec 2018

The accused was the principal contractor for the construction of an aged care facility in Torquay. It engaged a sub-contractor to render parts of the facility. Rendering was high risk construction work and there was a legislative requirement for a Safe Work method Statement (SWMS) to be prepared.

On 22 November 2016, the sub-contractor submitted a SWMS for the rendering work to the accused. The Accused reviewed the SWMS and advised the sub-contractor that it was not appropriate for the rendering work and told the sub-contractor to submit an amended SWMS.

On 6 February 2017, the accused reviewed the amended SWMS and assessed it as inadequate. The accused sought and obtained a further amended SWMS which it reviewed and formed the view that it was still not adequate. Despite this, the accused allowed the rendering work to proceed on 7 and 8 February 2017.

On 8 February 2017, the accused observed the sub-contractors working on a boom-type elevating work platform, with a boom length of 11 metres (“Platform”). Despite having formed the view that the second amended SWMS was inadequate, the accused did not direct the sub-contractors to cease work.

At about 1:15pm on 8 February 2017, a sub-contractor was crushed between the Platform and a steel beam of a veranda while undertaking the rendering work. He sustained injuries including a torn pancreas, crush injuries to his right kidney and duodenum, spine and rib fractures. Because of the crush injury, his right kidney was removed.

The accused entered into an Enforceable Undertaking with WorkSafe VIC

https://www.worksafe.vic.gov.au/prosecution-result-summaries-enforceable-undertakings

Even SafeWork NSW can get it wrong

In SafeWork NSW v Hetherington [2019] NSWDC 11, SafeWork’s pleadings against the officer of a company were found to be substantially similar to SafeWork’s pleadings against the officer’s company in a concurrent trial. The wording of SafeWork’s pleadings in both proceedings dealt with the duty owed by a PCBU and did not expressly engage with the different duty owed by the officer of a company as framed under the Work Health Safety Act. 

The District Court did not share SafeWork’s opinion that the duties owed by a PCBU are sufficiently similar to the duties owed by an officer. As a result of this, SafeWork was ordered to present new particulars – at a later date - identifying the specific details of the officer’s breach of duty. In the interest of procedural fairness, the safety regulator was required to rectify their pleadings to ensure the particulars were relevant and disclosed an offence known to the law.  

Mr Hetherington was an officer of HPS, a company repairing the roof of a building in Corowa. Mr Wilkinson was engaged as a dogman to help assist HPS in completing these repairs. Mr Wilkinson performed these repairs on the roof whilst wearing an unsecured safety harness and fell six metres suffering serious injuries. He was also uninformed that there were any unsafe areas on the roof. 

In his judgment, District Court Judge Scotting explained the difference between the duty owed by an officer and the duty owed by a PCBU under the legislation. Judge Scotting recognised that the Prosecution’s pleadings based their claims of breach on Mr Hetherington’s failure to take all reasonable steps to ensure the PCBU’s compliance. However, the Judge confirmed this is not what is required under Mr Hetheringon’s duty as an officer. Instead officers are required to exercise due diligence as defined by the Act, to ensure the PCBU complies with their duty.