| My Blog Site |  |
whsblog.com OHS and Safety | |
|
||
Newsletter
Q2 - 2021 # Failure to consult, cooperate and coordinate # Dishonesty has consequences # Qld reviews model WHS codes of practice # All WHS claims should be investigated # Are you at work when walking your dog .................................................................................. Failure to consult, cooperate and coordinate A New South Wales plumbing company has been fined $90,000 for two breaches of its work health and safety obligations. One of the charges related to its failure to consult, cooperate and coordinate with other duty holders, which contributed to one of its workers suffering serious injuries. The second charge related to its failure to notify the safety regulator after the incident occurred. The defendant company, Aceline Plumbing Group Pty Ltd (Aceline), had a referral agreement with Easy Fall Guttering Pty Ltd (Easy Fall) under which Easy Fall workers were illegally engaged to perform plumbing work using Aceline’s plumbing licence. In May 2017, a trestle placed beneath an Easy Fall worker moved during an installation (performed under Aceline’s licence) and the worker fell onto the concrete edge of the pool below, suffering serious injuries. On the day of the incident, the worker notified Easy Fall, who notified Aceline’s director. However, Aceline’s director failed to notify SafeWork NSW, which only became aware of the incident several months later through the injured worker. The Court found that Aceline had failed to:
Feb 2021
Dishonesty has consequences On 31 August 2020, Mr McLean pleaded guilty in the Brisbane Magistrates Court to 10 charges of dishonesty in relation to a claim for compensation made under the Workers’ Compensation and Rehabilitation Act 2003. On 19 November 2020, Mr McLean received a prison sentence for the offences. He appealed the decision in the District Court. The fraudulent claim On 16 August 2017, Mr McLean, a real estate agent, was attacked by dogs whilst working on a property transaction. He also alleged sustaining a secondary psychiatric injury. At the time of the incident, Mr McLean said he worked for Harcourts Calamvale. When Mr McLean lodged his statutory claim, WorkCover requested that he provide his pay slips so they could determine whether he met the definition of ‘worker’. Mr McLean sent WorkCover 12 pay slips for the period 22 May to 13 August 2017, which showed wages being deposited into a Westpac bank account. Investigations revealed that the payments set out in the pay slips were not credited to that bank account. Mr McLean involved his son in this offending by having his son furnish him with the fraudulent pay slips. When Mr McLean applied for compensation, he advised WorkCover he was unable to work because of the injuries he sustained. He was required to notify WorkCover within 10 days of returning to work or engaging in a calling. On 12 October 2017, Mr McLean signed a contract for the sale of a property in Logan while working in his capacity as a real estate agent. He therefore needed to notify WorkCover of his return to work by 22 October 2017. The first time WorkCover became aware of Mr McLean’s return to work was when a suitable duties plan was implemented by WorkCover’s occupational therapist on 23 July 2018. Surveillance footage showed Mr McLean continuing to work between 12 October 2017 and when he commenced the suitable duties program the following July. In addition to the conviction for defrauding WorkCover, Mr McLean was also convicted of knowingly making false or misleading statements. On seven separate occasions between 7 June and 6 September 2018, Mr McLean reported to WorkCover’s representatives and health care providers as to the nature and impact of his ongoing injuries. That these reports were false and misleading came to light following the surveillance period. Mr McLean advised WorkCover that he could not legally drive and there was no steering wheel that was light enough for him. Mr McLean reported to WorkCover that he could drive to the corner shop, which was only two minutes away, but it was not safe for him to drive any further distance, for example to the Gold Coast. Surveillance footage demonstrated this information to be false. When Mr McLean was examined for permanent impairment, he told the examiner that, while he had returned to some light duties, he was unable to go to property sites and perform open houses. Surveillance evidence demonstrated otherwise. The examiner assessed Mr McLean with a 27% impairment and he was offered lump sum compensation totaling $89,164.80, which he accepted. There were a number of other false and misleading statements that Mr McLean made to WorkCover. During the course of Mr McLean’s statutory claim he received $265,774.21 by way of WorkCover payments. This included $123,000 in weekly benefits. Facing overwhelming evidence, Mr McLean pleaded guilty in the Magistrates’ Court, and was sentenced as follows:
The Magistrate also ordered Mr McLean to repay WorkCover $261,524.21. (Mr McLean had, in fact, already begun to repay WorkCover some of the benefits that had been paid.) Mr McLean lodged an appeal to the District Court and argued there was an error of law made by the Magistrate in terms of the restitution ordered and that the head sentence, that Mr McLean serve six months of actual imprisonment, was excessive. In dismissing the appeal, Rosengren DCJ stated: There are aggravating features of Mr McLean’s offending. These are the amount of the fraud (even accepting that Mr McLean may well have been entitled to some compensation) and the lengthy period of time over which it occurred. Further, in addition to providing false pay slips and failing to inform WorkCover that he had returned to work as a real estate agent, on seven separate occasions he deliberately misled or lied to WorkCover representatives or its health providers as to the nature and extent of his injuries. He engaged in this course of offending as a mature man and involved his son in providing him with the fraudulent pay slips. Mr McLean’s offending is serious even when considered against the background of a legitimate injury with continuing symptoms. WorkCover did not invite him to steal from it and it was entitled to expect that he would behave as an honest injured worker. It is not as though some flaw in WorkCover’s administrative arrangements led to Mr McLean having accidentally conducted himself dishonestly. He deliberately set out to become the beneficiary of payments which he knew he was not entitled to. He pursued this course over a lengthy period and avoided detection by strategies of concealment … the community expectation is that WorkCover related fraud will be met with condign punishment. https://www.sclqld.org.au/caselaw/QDC/2021/22 Feb 2021
Qld reviews model WHS codes of practice The Queensland Government has reviewed its model codes of practice and approved new versions of 21 model codes of practice (based on the national model codes of practice developed by Safe Work Australia), with effect from 1 March 2021. Queensland's regulatory review is in line with two broader national WHS policy objectives: first, securing a harmonised approach to Codes of Practice across Australia; and second, the ongoing review of the model codes of practice. Queensland's revised model codes of practice accommodate the outcomes of Safe Work Australia's 2018 review of the national model codes of practice.
All WHS claims should be investigated All WHS claims should be fully investigated as the recent case of St Michael's Association Inc v T [2020] TASWRCT 35 demonstrates. In this case the Tribunal finds that injury "implausible" An employee (T) was a disability support worker for St Michael's Association Inc (St Michael's) in Tasmania. T was ten pin bowling with two clients when she went to retrieve a bowling ball and tripped on a carpet edge. T alleged that this trip caused her to fall into a nearby counter resulting in a fractured arm. T made a workers' compensation claim. While St Michael's accepted that T had fractured her arm, it had concerns with T's allegation as to how the injury occurred, including in circumstances where T had asked for time off the day before the injury and had previously made 9 claims over an eight year period. St Michael's disputed the claim and engaged an external investigator to investigate T's injury. The investigation found that:
St Michael's also obtained a report from Dr Barry Gilbert, an expert in "biomechanical and occupational medicine." While Dr Gilbert did not comment on whether T deliberately fell, he considered that T's injury was not consistent with a simple trip and T had the capacity to take evasive action to avoid colliding with the counter. St Michael's successfully disputed the claim before the Workers Rehabilitation and Compensation Tribunal, with Chief Commissioner Clues finding that T's injury was "implausible, most unusual, not consistent with a trip and may not have been an accident". Mar 2021 Are you at work when walking your dog?
Well yes, if the circumstances tick all the boxes. The Chief Commissioner of the Workers Compensation Tribunal found in favour of a worker who was on-call at the time he sustained an injury to his left leg whilst walking his dog. At the time of the injury the worker was employed as a relief area coordinator and was staying at the employer’s Tullah (Tas) accommodation for a 7 day period during which he was required to be on-call. Whilst walking along the Tullah lakeside with his partner and his dog, the worker slipped and fell on a wet log suffering a fractured left femur. Finding in favour of the worker, the Chief Commissioner found that the worker’s injuries arose ‘in the course of his employment’. In coming to this determination, the Chief Commissioner applied the test in Comcare v PVYW and examined the meaning of ‘in the course of his employment’, and whether the employer had induced or encouraged the worker to engage in the activity of taking a walk along the lakeside in the company of his dog and partner. In this case, the fact that the worker was walking along the Tullah lake house whilst he was required to: · be on call for work after normal hours; · be contactable within 15 minutes; and · be ready to commence work within 15 minutes of being contacted. The worker was authorised to spend his interval between periods of on-call work in any way he wished that was not inconsistent with him being contactable and able to attend work. In this context, the Chief Commissioner considered that the act of walking along the Tullah lake house was an unexceptional activity, which would have been recognised by the employer as an acceptable activity of workers working at Tullah. March 21
|
All information is of a general nature. Readers are advied to make
their own enquiries before relying on any material in these
pages