Understanding Common Law webinar series presentation 22 October 2014

Transcription

1 Understanding Common Law webinar series presentation 22 October 2014 Topic: Lifting and transfer injuries specifically general manual handling risks and industry specific manual handling risks.

2 Presenters: Matthew Bannan - Industry Manager, Health and Community Care, WorkCover Queensland Cameron Seymour Partner, Mullins Lawyers Page 2 of 13

3 Background To help set the scene, I thought I would just provide a small amount of background into the health and community care industry in an attempt to provide some context for today s webinar. Who makes up the wider health and community care industry? The industry is made up of the following: hospitals (public and private) medical and other health care services, such as general practice and specialist medical services, pathology and diagnostic imaging and allied health services residential care services social assistance services (including disability services and child care) ambulance services. What do we know about the industry facts and current trends? The Australian Federal Government s Department of Employment projects employment to grow by 838,100 (or 7.2 per cent) over the five years to November Health and community care has been the primary provider of new jobs in the Australian labour market in the short, medium and long term. Over the next five years, the industry is projected to contribute one quarter of the total employment growth, increasing by 229,400 (or 16.3 per cent). Factors contributing to this strong projected growth include the implementation of the National Disability Insurance Scheme; Australia s ageing population, and increasing demand for childcare and home based care services. From a statutory claims perspective: Health and community care workers made 11,511 new WorkCover QLD workers compensation claims in 2013/2014 (down 6.4%) Health and community care statutory claims cost $88.9M in 2013/14 (down 8.1%) Back injuries were the most common (approx. 25% 2,906 claims), followed by shoulder and upper arm (approx. 15% 1,720). From a common law perspective, Health and community care workers lodged 520 new damages claims in 2013/14 (down 3.9%) Health and community care common law claims cost $54.4M in 2013/14 (up 7.9%) While today s webinar has a health and community care theme and flavor, the concepts and discussions are applicable across all industries. Page 3 of 13

4 So essentially for any lifting or manual handling undertaken in any role or industry, these key concepts can be applied and utilised to not only reduce and prevent injuries in the workplace but also to ensure you have adequately met your duty of care as an employer to your employees. Lifting and transfer injuries Introduction 1. General manual handling risks/industry specific manual handling risks There are similar manual handling risks across all industries whether it be health, mining, transport, retail etc. There are also manual handling risks that are specific to the health industry. I ll talk about both sorts of risks, how they can be minimised and, with a bit of hindsight, why Courts often find in favour of injured workers. 2. Common manual handling issues across all industries Manual handling injuries often arise from the following mechanisms: bending; reaching/stretching; twisting; lifting. All these mechanisms put a load on vulnerable parts of the body. We mostly see injuries to the spine, neck, shoulders, knees, from manual handling injuries. Manual handling injuries occur not just in manual handling roles (such as labourers) but also in administrative roles. For example, the sorts of manual handling injuries which could occur in any industry might include moving or storing files or archive boxes, moving equipment on shelves or benches, cleaning (carrying buckets, bending, twisting), carrying and folding linen etc. I m sure you can tell me hundreds of different examples based on real life cases. These sorts of injuries are just as likely to occur in the health industry as they are likely to occur in any other industry. They are common and they are as likely to occur in the home as they are in the workplace. Page 4 of 13

5 3. Industry specific manual handling risks Then there are the sorts of industry specific manual handling risks which are peculiar to the health industry. Most notably, these are the injuries that arise out of lifting or transfers of patients and in particular: transfers to and from: o beds; o chairs; o wheelchairs; o floors; o baths; o commodes; manoeuvring trolleys or beds; supporting patients weight or even just supporting part of a patient s body; dealing with aggressive or non-compliant patients/physical assaults/take downs. All of these situations can and do result in injury, statutory claims and common law claims. Now that I ve given some examples, I m happy to receive questions or comment in relation to any specific examples you may have. 4. Who minimises the risk? At this point I want to clarify that I m not here to tell you what the most appropriate manual handling method is to be applied in every case. That is often a matter of expert evidence that I am not Page 5 of 13

6 qualified to give. By the time the case gets to me, it s too late for that advice the injury has already occurred. It s not my job to give you a job safety analysis on when to use a slide sheet and when to use a hoist, or which is the best bed to use. Lawyers come in after the event and apportion blame. To that extent, we may not be seen as a helpful part of risk management. We are more about learn from your mistakes rather than avoid mistakes by doing this. The reason for that is, these days, as occupational health and safety has become so important, for the most part, we don t see very many obvious injury scenarios, such as a 40kg 65-year-old female being asked to lift a 30kg weight with a bent back. The claims we see now are more likely from events where something unusual has happened or there has been some sort of interference to the usual process. Lawyers simply can t stipulate the thousand different variations to each scenario and devise a proper job safety analysis for each exception. We can only work out what went wrong and who is to blame. It is your occupational health and safety experts role to devise risk assessments and ensure proper equipment and training is provided. Your occupational health and safety experts will know all about the manual handling code which prescribes methods to minimise risk brought about by heavy, awkward or repetitive lifting and job safety analyses for particular pieces of equipment or work practices. In this webinar, I can t possibly go through each and every example of how the manual handling code may or may not apply or what particular equipment or technique should apply. 5. When will the employer be liable? By the time a case gets to me my job is to examine all the facts and circumstances, which facts can be proved and which allegations might not be proved, and advise WorkCover what a Court may decide in relation to any particular case. This examination includes undertaking factual investigations with employer representatives and relevant experts; plus medical investigations to determine the nature and extent of the injuries alleged by the claimant. The Workers' Compensation and Rehabilitation Act 2003 sets out time frames for the common law claim process. WorkCover aims to comply with those time frames. Page 6 of 13

7 WorkCover is committed to managing common law claims in accordance with model litigant principles. WorkCover s philosophy of making our "best offer" early is part of its "firm but fair" approach to claims management. It also helps WorkCover achieve better outcomes for both workers and employers. So WorkCover s lawyers investigate the claim and advise WorkCover what decision a Court will make. Based on this assessment and advice, a resolution strategy is established and discussed with the employer and other parties to resolve the claim in a timely and appropriate manner and in line with WorkCover s best offer philosophy and model litigant principles. Once a claim comes in, it is WorkCover s lawyers role to advise whether: An injury has occurred; The employer or any other party is liable for that injury; And if so, who pays for it and how much? An employer will be liable if: Injury has been suffered; The injury was foreseeable; The employer owed a duty of care; The employer breached a duty of care and the breach caused the injury. 5. Breach Ordinarily breach is the most vexing question. To determine whether the employer has breached its duty, a Court will look at: The likelihood of the risk resulting in injury; The severity of the likely injury; The cost of taking preventative action to reduce the risk. An employer is taken to know these things. Even if these things are not actually known, a Court will usually assume the employer ought to know because an employer is required to take reasonable steps to inform itself of such things. An employer s duty of care is very high. It even extends to safeguarding against a worker s own stupidity or inadvertence. For example, an employer will virtually always lose if a worker sticks their hand into an unguarded blade because: The likelihood of the risk resulting in injury is high; The potential magnitude of the injury is high; Page 7 of 13

8 The cost of preventative action would be low. For a reality check, what level of safety would you expect if it was your 16-year-old son or daughter s first day on the job? We can do a whole separate webinar on the issue of contributory negligence, that is, how much should the damages be reduced for the worker s own negligence and in fact should the damages be reduced at all. Summary of liability principles If a foreseeable injury occurs, and a Court decides there is reasonable likelihood of a risk resulting in injury and that the potential injury could be serious and the cost of avoiding the injury is not prohibitive, the claimant will succeed. However, the duty on the employer is not absolute. It is not strict liability. That is, just because a person injures themselves in the workplace, it does not mean that the employer is liable. The employer is only obliged to take reasonable steps to protect its workers. In some circumstances, the risk of injury may be quite low, or even though a risk of injury is foreseeable, there might be nothing that the employer could reasonably do to reduce the risk of injury. For example, if a person walks into a wall or jams their finger in a drawer, a Court would probably accept there is nothing else the employer could have done and the employer won t be liable. 6. How distinguishing features affect liability So if a person jams their fingers in a drawer, the employer won t be liable. What if the drawer had a razor sharp edge so that it acted like a guillotine and chopped off a worker s fingers? The employer would no doubt be liable in those circumstances because of the heightened risk of injury and the heightened significance of a potential injury. It is these funny little changes in the facts, which lawyers call distinguishing features, which are the difference between winning and losing a case. Quite often, in a case where arguments are finely balanced between the claimant and the employer, both parties will look for distinguishing features that will prove to be the difference between winning and losing. It is for these reasons that we must be vigilant and not become intellectually lazy once we see that an injury is a lifting case or the worker should have known better or the worker ignored training. Page 8 of 13

9 We can t be tempted to say oh well, this is just another lifting case. We need to look at all the facts to see whether we can identify a distinguishing feature which might turn the case on its head. Now let s go back to some lifting examples and particularly ones which are peculiar to the health industry: Transfers to and from: o Beds; o Chairs; o Wheelchairs; o Floors; o Baths; o Commodes; Manoeuvring trolleys or beds; Supporting patients weight; Dealing with aggressive or non-compliant patients I have no doubt these days and certainly since the first incarnation of the Workplace Health and Safety Act which come into effect in 1989 when I was but a mere Articled Clerk, countless millions of dollars in resources have been applied across all industries to risk assessments and job safety analyses to a wide variety of manual handling tasks. Overall, when workers succeed in any one of the above scenarios it is because there has been a failure in one of the following links in the chain: Identification of the risk; Proper action to avoid or minimise risk; Appropriate training; Monitoring; Supervision; Resourcing; Lack of equipment; Inappropriate equipment or equipment failure; Departing from instructions; A variety of unusual circumstances which take the event outside what was contemplated in the training. Unusual circumstances sometimes include: The unforeseen acts of co-workers for which the employer is vicariously liable; Confined areas; Competing priorities/rushing; The failure of a risk assessment or job specification to convert from a controlled environment (such as work premises) to a non-controlled environment, e.g. working in the field at a client s house or shopping centre etc. In those circumstances, it is imperative that all workers are trained in how to undertake their own risk assessments and to report any seemingly unsafe practices or environment. I want you to think about each of the potential failure points on this PowerPoint slide headed How distinguishing features effect liability and the next slide and apply them to each of those lifting examples relevant to the health industry specifically, or manual handling claims common to every industry. The vast majority of all successful common law claims for lifting injuries have failure in one of those points. From a risk management perspective, look at these potential failures and work backwards to the relevant scenario. Page 9 of 13

10 7. Take home message common to all claims In most cases involving an injury suffered in the course of manual handling, liability will be determined after examination of: Whether a risk assessment had occurred; Whether the risk assessment contemplated the actual circumstances which occurred; Whether that procedure was appropriate; Whether the procedure which arose out of the risk assessment had been communicated; Whether the procedure had been refreshed or supervised; Whether the procedure was in fact able to be followed; If unusual circumstances presented themselves, whether the worker was equipped to respond to the unusual circumstances. Tying it back to the examples of lifting incidents which are peculiar to the Health industry, I can deal with some specific examples by way of illustration: What do you think the result would be if a Nurse injured themselves transferring a patient from one bed to another and had followed the correct procedure for a transfer except that she had to place herself in an awkward position because her side of the bed was a confined space which was made momentarily confined due the presence of other equipment or personnel in the room? In that situation, the confined space and the cause for it would be the distinguishing factor which could end in the claimant succeeding notwithstanding the fact that he or she had been properly trained in the transfer process. What do you think the result might be if a worker was assisting a patient transfer from a bed to a wheelchair and in the middle of the transfer the wheelchair was bumped and rolled away causing the worker to support the patient s weight in an awkward position? What would be the situation if the training in the transfer involved ensuring that the brake was activated on the wheelchair and the brake was activated, but the brake was deficient or another party incorrectly told the injured worker that the brake had been activated when it had not? These random variables in the equation are the distinguishing features that Courts point to as the real breakdown of the employer s attempt at safeguarding its worker. A case (and a chain) is only as strong as its weakest link. Sometimes it is just plain bad luck for the employer. That bad luck is the tension between taking reasonable steps to protect workers and the recognised high standard of care owed by employers. Obviously, if a worker has not been properly trained or has been provided with defective equipment and that is the cause of the injury, there is no doubt the claimant will succeed. Page 10 of 13

11 Case study and poll Now that you have heard the key concepts and have listened to a few case examples, we would like to test your knowledge with a quick poll that sets out a case study. On the screen now we have provided a basic scenario which Cameron will now outline in more detail. We would like to vote either yes or no. We are asking for your opinion on whether you think the claimant was successful with their common law claim for damages. Scenario This is an example that has occurred a few times in the last couple of years: An employer provides social assistance to persons in the community. This includes providing outings to clients with reduced mobility who may require a wheelchair. A risk assessment is undertaken by the employer. The risk assessment identifies that on some occasions, where the client does not have their own wheelchair, the employer should provide a wheelchair. The risk assessment also identifies that workers are required to transport clients in the work vehicle and stow away and retrieve the employer provided collapsible wheelchair from the boot of the car. Training is provided by the employer to the worker which sets out a safe method of retrieving the wheelchair from the boot of the car to minimise the risk of injury involved in bending and lifting. The method involves stowing and lifting the wheelchair close to the worker s body. The wheelchair is the lightest yet sturdiest wheelchair available on the market and let s assume that expert evidence has been obtained that lifting the wheelchair out of the boot in the prescribed manner would not cause any injury to a normal healthy spine. The training of the worker is documented and the employer even takes the extra step of videoing the worker successfully demonstrating the appropriate procedure. On this set of facts, there has been a risk assessment and documented training. Assume that the worker injures their back lifting a wheelchair out of the back of a car in the course of their employment. On the current facts, do you think the worker would succeed in a common law claim? Page 11 of 13

12 Now assume the following distinguishing features. What if the worker was using a different car to the one where the process was demonstrated, the configuration of that car had a lower boot requiring the Claimant to bend her spine more to lift the wheelchair such that the attitude of the spine retrieving the wheelchair from the new car was less safe than the procedure that had been taught? Let s poll again. Different car - do you think the worker would succeed in a common law claim? Now let s say that the last worker to use the wheelchair stowed the wheelchair at the back of the boot instead of the front of the boot (contrary to the trained procedure), and the Claimant had to reach forward and lift the wheelchair away from her body to retrieve it? Let s poll again. Back of boot - do you think the worker would succeed in a common law claim? Now what if a strap on the wheelchair snagged on some clutter in the boot; adding an extra force to the lift while the Claimant s back was bent and stooped, lifting the load away from her body and let s also assume for good measure that the Claimant had a pre-existing back condition known to the employer? Let s poll again. Snagged strap - do you think the worker would succeed in a common law claim? Now for one last addition to the circumstances, assume that the Claimant had done exactly the same thing a number of times without injuring herself (that is, reaching over clutter in a bent and awkward posture to recover a wheelchair wedged at the back of the boot) and had been seen by the employer doing that, but the employer had not corrected the Claimant on her dangerous technique. Let s poll again. Boot clutter - do you think the worker would succeed in a common law claim? The purpose of this exercise is to look for the distinguishing features in a case that may vary the outcome and to help you anticipate those distinguishing features to provide better risk assessment, training and monitoring. Summary and key messages Prevent injuries: Provide a safe place and system of work for your employees Early intervention and Stay at Work: Be aware of injuries in your workplace. Encourage reporting of injuries. Lodge claims early. Be proactive. Focus on keeping injured workers at work Page 12 of 13

13 Early identification and availability of suitable duties: Research demonstrates that stay at work and return to work is not only in the best interest for injured workers but it also has a positive impact on workplace and ultimately your premium. Focus on capacity and develop a supportive work environment: Focus on what your injured workers can do. Match capacity with appropriate duties. Be flexible. Provide a supportive workplace that encourages recover at work. Effective communication between all parties is the key to ensuring a successful rehabilitation and RTW outcome. And lastly and specifically relevant to today s session, Risk management: Injuries can be prevented and common law claims can be better defended by identifying risk; implementing a safe place and safe system of work; ensuring adequate training and induction; providing adequate supervision, assistance and enforcement and good record keeping and documentation. Page 13 of 13