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Tuesday 28th July 2015
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At home, at work, at play –
which worker injury will you
have to cover?
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In today's Health & Safety Bulletin:
- When a worker’s injuries outside the workplace become your business
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Dear Reader,
One of the common themes that crosses ourHealth & Safety Handbook’s free helpdesk is where coverage for workers’ compensation starts and ends.
Editor-in-Chief Michael Selinger and his team hear from employers who are worried about challenging a claim for an injury incurred away from the workplace - and making the wrong call.
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If you’ve gone to great lengths to make your workplace as safe and injury-free as possible, it can open up a real can of worms. How can you control what happens on the way to and from work, or on an employment-related trip – or working from home?
Today, it’s worth looking at three situations where these questions have been considered – and where (to an extent) your obligations have been clarified.
An expensive slip in the shower
In June of this year, the Queensland Industrial Relations Commission (QIRC) ruled that a worker’s lower back injury from a hard fall was fully compensable.
The twist? The worker, Robert Ziebarth, had been in his shower at home when he slipped trying to answer a call from his employer.
Mr Ziebarth, a fleet service manager with Blenners Transport in Cairns, was on-call in March 2013, and said he felt obligated to respond to the telephone call promptly in case it involved an urgent breakdown or maintenance job.
In order to make a successful claim, it was necessary for Mr Ziebarth to establish that his injury arose out of or in the course of his employment, and that his employment was a significant contributing factor to the injury.
The QIRC confirmed that the test for whether or not Mr Ziebarth’s injury arose in the course of his employment was based on two main considerations:
- What activity was being engaged in at the time of the activity, and;
- Whether the employer induced or encouraged the worker to engage in that activity.
The activity was the answering of Mr Ziebarth’s work mobile. Looking to his contract of employment, the QIRC was also satisfied that he was expected to make himself available when on call from time to time, and so he was indeed encouraged to engage in that activity.
Medical evidence showed that the injury was the cause of the fall, confirming that his employment was a significant contributing factor in this instant.
This presents an interesting consideration for employers with ‘on-call’ workers. You expect them to jump to it when you try and give them a call – but this also engages at least some of your employer duties (and liabilities).
Would things have been different if Mr Ziebarth (while on-call) slipped in the shower to get a call from a friend instead?
Most likely they would have been – just because he would have been meeting certain employer conditions while on-call, it wouldn’t be an activity his bosses had induced or encouraged him to engage in. |
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Journey claims – the employer’s role matters
In most Australian jurisdictions, claims for injuries suffered during travel can be compensated.
But if I use my lunch break to go and check out something I saw on Gumtree (and crash my car in the process) I’ll be out of luck. For a claim to be compensable, it must be work-related.
Fair enough – but where can this get complicated?
Last year, the NSW Workers Compensation Commission (WCC) considered a disputed claim for compensation lodged by a service station attendant who was on a motorcycle journey to her home after closing up for the evening. She had stayed later than she usually remained at work to receive training.
The attendant, Ellie Wickenden, swerved to avoid cattle and collided with an oncoming car. The employer’s insurer denied liability on the basis there was no real and substantial connection between her employment and the incident – NSW workers’ compensation law requires this connection if a trip to work to or from home is compensable.
The WCC found that Ms Wickenden’s situation of riding home in darkness was a situation connected with her employment. This was because her employment had required her to work later than usual that day and ride home in darkness, rather than in daylight.
Importantly, it confirmed that a “real and substantial connection” need not be a causal connection between an employer and a situation. Although Ms Wickenden’s employer didn’t cause her to crash, its actions created a connection between the fact of employment and the accident.
This is further complicated by the way in which travel to and from work will be covered by workers’ compensation in different jurisdictions. Some States and Territories cover it with reasonable exceptions – others don’t cover it at all.
If something happens to one of your workers while on a journey, it’s a great idea to check where you stand with your regulator.
Work trips: pushing the boundaries in more way than one
So what about if you send your worker to a conference for a few days? They’re there on your instruction, but does that mean workers’ compensation picks up the tab for anything that goes on?
he new gold standard in this areas of workers’ compensation law was set by the High Court’s decision inComcare v PVYW[2013] HCA 41. If the title doesn’t ring a bell, the facts of the case probably do: it concerns a government employee sent on an overnight work trip, who made a claim for an injury received during a sexual encounter in her hotel room.
In confirming that the injury did not take place “in the course of employment”, the Court decided that an incident that took place in an interval or interlude during an overall period of work (that is, a worker’s downtime during a work trip) must be connected to an encouragement or inducement by the employer to perform a particular activity.
Obviously, the way that the worker injured herself in this case wasn’t something condoned by her employer!
While this ensures the workers compensation’ scheme is protected from some indiscretions, you can easily picture a scenario in which unusual work trip activities are still inadvertently encouraged or induced by an employer.
For example, what if a worker is instructed to network to win a certain client or contract? Think about what a lot of business networking can look like in practice (golf, or fishing, or alcohol) and you’ll see what I mean.
Closing the case
Keeping a claim open or unresolved for a long period of time can add cost to your insurer premium – not to mention the other legal costs if a matter heads into dispute.
Workers’ compensation claims that occur away from work often present a particular kind of complexity. But many of the same principles for the effective management of ordinary compensation claims apply – be organised, be flexible, and develop return to work programs that suit your business.
For more information, you can see the Workers Compensation chapter (W1) of ourHealth & Safety Handbook.
Take care,
Joseph Nunweek
Editor,Health & Safety Bulletin
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