Minor injuries add up! Simple solutions to reduce your injuries and costs
Simple solutions to reduce your injuries and costs
In 2016–2017 more than 24% of all new injury claims lodged by Queensland workers originated from lacerations and foreign bodies. While the majority of these injuries were minor and avoidable, some were indicators of a more serious injury waiting to happen. If not reported and treated early, these ‘minor’ injuries can become serious and costly very quickly.
Watch this webinar recording to learn about:
- prevention strategies
- best practice rehabilitation in the workplace following a minor injury
- surgical interventions and complications; and
- possible common law impact.
- Peter Westcott, Principal Inspector, Workplace Health and Safety Queensland
- Cameron Mackay, Plastic and Reconstructive Surgeon
- Brent Cunningham, Exercise Physiologist, Konekt
- Ross McConaghy, partner, Jensen McConaghy Lawyers
Over 96% of respondents to our post-webinar survey indicated that they would recommend the webinar to others, and over 89% said they would be able to implement learnings into their workplace. Watch now and don't miss out on this valuable resource.
Ms Creagh: Good morning everyone. Welcome to this WorkCover Queensland facilitated webinar, and thank you for joining us today as we discuss how minor injuries add up, simple solutions to reduce your injuries and costs. My name is Helen Creagh, and I am a Customer Experience Manager at WorkCover Queensland, and I will be your moderator for today's session. Before we start though I would like to quickly take you through how this webinar format works, and specifically how you can interact during the session.
On the current slide you will see an image of the webinar control panel. You can select 'audio' on the control panel and change between computer audio and telephone, depending on your preferred method. If you have headphones and speakers connected to your computer, please select 'mic and speakers', otherwise choose 'telephone' to access the dial in details. You can hide and unhide the control panel using the coloured arrow. This will make sure you can see the entire screen. And if you have a comment or question for the presenter or moderator, please type your comment or question in the bottom panel and press send to submit. Your comments and questions will then appear in the middle section. Please send through your comments and questions as the session progresses, as there will be time allocated at the end of the presentation for our guest presenters to respond. I kindly ask that all questions are kept to general issues as opposed to specific claim issues. And if we can't get to all of the questions in Q/A time, we will follow up with some summary points and FAQs after we finish the webinar.
Webinar recording and presentation will be on workcoverqld.com.au in the coming days, and an email will be sent to all participants when this goes live. If we don't get to all your questions, we will collect them and publish answers on our website afterwards. So we can continually improve our level of service, we would also appreciate you completing a short survey at the end of the webinar.
Okay, so let's meet our presenters for today. We have four presenters for today's webinar who will approach the topic from different and specialised areas. So joining us is Peter Westcott, Principal Inspector for Workplace Health and Safety Queensland. Peter will provide injury prevention strategies to reduce foreign body and laceration injuries. He will discuss best practice, current PPE recommendations, and how to develop a safety leadership culture.
We also have with us Dr Cameron Mackay, who specialises in hand and reconstructive surgery, and will highlight the benefits of early medical intervention, including proper diagnosis and planning for minor lacerations, concealed tendon and finger tip nail bed injuries. He will also discuss how late presentation and underlying health complications can lead to poor return to work outcomes.
In addition, we welcome Brent Cunningham, who's an exercise physiologist with Konekt. Brent will provide participants with contamination management strategies for lacerations in dirty workplaces, good versus bad suitable duties, and what to look for when injuries are not progressing, or are more complex or severe than initially presented.
And finally joining us today is Ross McConaghy, partner at Jensen McConaghy Lawyers. Ross has 26 years' experience in insurance and personal injury law, and he will provide an overview of the common law process. He will use minor injury case studies, discuss the damages scenario, exploring both the employer and worker obligations and negligence, and the cost impact.
So why are minor injuries important? In 2015 and 2016 within the manufacturing sector more than 31% of all injuries arose out of wounds and lacerations. This was the second most common injury type after musculoskeletal injuries. But this trend is not isolated to manufacturing. Similar injury types and frequency can also be seen within agriculture, retail, wholesale, construction, mining and labour hire. And while seemingly innocuous injuries, they resulted in over $13 million in compensation payments, and an average of 14 days off work.
So how can such insignificant injuries as a laceration, foreign body, or a nail bed injury, have such a large impact? Well, that is what we are here to explore today. And by the end of the webinar you should have some ideas on prevention strategies, best practice rehabilitation in the workplace following a minor injury, surgical interventions and complications, and possible common law impact.
So with that, I will hand you across to Peter, who will commence the webinar.
Mr Westcott: Good morning everyone. I'm a Principal Inspector with Workplace Health and Safety Queensland, based at Mt Gravatt, Brisbane. Today the topics covered, I'm going to briefly in my time slot talk about understanding your obligations, foreseeable incidents, injury prevention and PPE. I'll be touching on safety leadership at work, defining and exemplifying an example of best practice, and finishing off with a summary.
I've purposely put these figures back up again, as you can see. The figures are just simply too many. The financial costs are high, the productivity lost immeasurable. The figures from wounds and lacerations, which has similar unacceptable costs in terms of your most valuable resource, being people, and again financial costs eating away at your bottom line. So what can we do about it? Let's take a look at the following slides.
Okay. Section 19. This is straight out of the Work Health and Safety Act. It basically says that you have an obligation to ensure, so far as reasonably practicable, the health and safety of workers and others. Okay. In a general sense, the person conducting a business or undertaking is normally the business owner, whose business activities can affect workers and others from a health and safety perspective. You should note that a person in control cannot transfer this duty, meaning he can't subcontract it out, or hand it over to someone else. An example of a person could be a sole trader, a partnership, a company or even a trustee of a family trust. The list goes on.
In terms of obligations, I've discussed the first dot point. You'll see that it goes on to the next four. We've got upstream parties. Think of you putting in an air conditioning plant at your workplace. Someone's got to design, manufacture, import, supply, install, construct, et cetera. Officers within your organisation can have an obligation. Workers have an obligation, as well as other persons.
In the interests of time, I put this slide up, which clearly shows there's a lot of obligation going on. If you run your eye down the slide, you'll see that you've got to create a safe work environment, safe plant and structures, safe systems of work, safe use, handling and storage of plant, have adequate facilities for your workers. More importantly, provide information, training, instruction and supervision that you expect your workers and people to do, and in some cases monitor work health and workplace situations – conditions, I should say. An example of that would be working with lead.
Section 17 of the Act basically says you've got to eliminate risks so far as reasonably practicable. If it is not reasonably practicable, you've got to try and minimise those risks so far as reasonably practicable. Now, duty holders include workers, team leaders, supervisors and managers. We all have the responsibility to eliminate risks to health and safety so far as is reasonably practicable.
I put this slide up just to sort of try and simplify these concepts. On the left you've got deciding what is reasonably practicable to do, so you've got a process at your workplace. You've got to consider the likelihood of the hazard, or the risk occurring, what's the degree of harm, the knowledge about the hazard or risk, the availability and suitability of ways to eliminate. And then, and only then, after assessing the extent of the risks, you can consider cost.
The next slide here is a rather busy slide. I put it in there, but you'll see by the following slide I'll break it down a little bit. This is basically something called the Hierarchy of Controls, Section 36. It basically states clearly of what an obligation holder must do, if it's not reasonably practical to eliminate a risk. Inspectors know and understand reality on the ground that workplaces sometimes simply cannot eliminate risk, however there is a legal requirement that this hierarchy of controls be applied where possible.
Now, this is the slide I was talking about. You'll see basically what I've done is taken those hierarchy of controls and put them into an inverted triangle. In the safe zone we've got elimination. Obviously in a perfect world that would be great. But it also includes substitution, isolation and engineering controls. Below that, I put the training and admin and PPE in the danger zone. Now, don't conclude from that that that's a bad thing. All I'm saying is that the items in the green section of the triangle are hard defences, whereas the two items below the black line, the orange, yellow, whatever it is, and red, indicates softer defences for workers who are exposed to risk.
Before providing some helpful hints for you to consider, I would like to highlight a couple of examples that demonstrate how easily a worker can be injured when obligations are either ignored or inadvertently considered – sorry, inadequately considered. The first point there, defective guarding, i.e. a cabinet maker workplace had a variety of plant for use by workers. One of those items was a drop saw which was regularly used by workers. The drop saw was defective in two ways. There was no maintenance to its plastic guard, in other words it would not move smoothly due to the material build up in the saw's guarding pivot point. And the second, the section of guarding had a hole in it, exposing the rotating blade. Such hole was simply taped over.
Now, before I conclude on that example, I'll just show you some photos. That's an actual photo of the saw. You can see where they've cracked the guard and put some tape over it to cover the hole. The photo on the right is the actual hole with the tape removed. A 30 year old worker used the drop saw, found that the guard was sticking in position, and then assisted the guard movement with his left hand, resulting in the worker's thumb penetrating through the tape and into direct contact with the rotating blade. This caused severe lacerations to the worker. Had such guard been correctly rectified, either competently repaired or replaced to manufacturer's specifications, this incident would simply have not occurred. So what's the learning outcome of that? Simply, due diligence. There was no safe work procedure instructions for correct usage, and regular maintenance simply didn't occur. Had those two been covered, it would have prevented it.
The second example I want to give of what a foreseeable incident is relates to a workplace that stored and handled and distributed hazardous substances to clients. They had actually developed a safe work procedure for workers to follow in order to manage risks associated with preventing workers from coming into contact with harmful substances. This safe work procedure specified that workers were to wear, firstly, safety glasses, and secondly, safety goggles in order to protect workers' eyes. In principle, it sounded like a double precaution was adopted by the obligation holder. However, in practical terms the use of both devices created a further unidentified hazard, with the arm of the safety glasses preventing the goggles from sitting flush on the surface of the worker's face. This caused a gap, and unfortunately provided a route for an uncontrolled spray of chlorine to enter and injure the worker's eyes. The learning outcome there, again, due diligence regarding information gathered and the safe work instruction given, together with adequate training and supervision would have prevented the incident.
Personal protection equipment. The film attached to this webinar gives several examples of where personal protection equipment has assisted in injury prevention. There's the window and door supplier who used a Stanley type knife fitted with a ceramic blade, which were a hit with workers and employers, as they resulted in lowering the hand injury incident rates. There's another example there of a metal industry employer's use of a certain type of glove that significantly reduced laceration injuries. And, thirdly, a steel fabricator who deployed a specifically designed plasma cutter to get workers away from the more dangerous task of cutting steel.
PPE, in all its forms, although technically a softer defence in the hierarchy of controls, can provide good protection under planned and foreseeable circumstances. However, where assumptions are made about the effectiveness of PPE, the outcomes for the end user are never good. For example, I recall inspecting a workplace where ordinary P2 dust masks were issued to workers as a defence event against possible inhalation of a dangerous gas by workers. Such action proved highly ineffective in safeguarding workers' health. After appropriate risk assessments were conducted based on the actual contents of a safety data sheet, and the actual work processes required at the workplace, the obligation holder was able to ensure that appropriate canister style face masks were acquired, backed up with a lot of information, instruction, training and supervision.
So where PPE has been identified as a requirement in your work process, it's very important to ensure that both management and workers understand the manufacturers' instructions and specifications about proper use and worker protection. It's always good to liaise with suppliers of PPE. You'll find that most of them are very helpful. Refer to Australian Standards where possible, and get to know your local inspector.
A recent preventing eyes and injuries campaign conducted by Workplace Health and Safety Inspectors found that 34% of workplaces visited only had ad hoc processes or gaps which included no risk assessment documentation, ad hoc training and supervision, improvements to hand tools and plant equipment only made after an incident. So in other words, it was done reactively instead of proactively. PPE provided was not fit for purpose. The hierarchy of control was not followed, and there was poor consultation practices. Okay. Why is that bad? Because when there's an incident, and the ambulance has come and gone, we're notified, we're sent to your workplace, and it's not a good scenario for an attending inspector to discover exactly what's [ inaudible ].
Okay. There's an expression that goes 'people don't know what they don't know'. For those seeking to begin or improve safety in general at your workplace, there is a need to begin at the beginning. To prevent injury to workers, an obligation holder needs to compile a list of hazards that can cause or potentially cause death or serious injury to workers. This slide represents page one of a simple two page hazard identification checklist, which is a great way of compiling a list of hazards that requires some form of control to keep people safe. The checklist is freely available to download from our website by typing in 'hazard identification checklist'.
Okay. This next slide looks a little bit busy, but I just wanted to take you very quickly through the simple development of a safe work procedure. And you can see there's three columns. It's a simple task analysis, what is the step of the task? This relates to use of an angle grinder. And obviously the first task there, turn it on. It talks about what can go wrong in the second column. The third column talks about what to do about it. And when you take the first column and the third column, that becomes your safe work procedure. Again, the task there of grinding the material, it talks about what can go wrong, noise, projectiles hitting the operator in the eye, et cetera. And then on the right hand side, always wearing eye and ear protection, and an apron to protect against sparks during operation, et cetera. And the final, turn off the angle grinder, trips on residue of waste is a hazard, and then in the what to do about it, check leads for damage, check disc and replace, if necessary. And that's what it looks like when it's finalised. It's only a sample. The next example, this one's in Word format, it's not assigned to any particular workplace.
The reason I show that one is down the bottom of that particular procedure you'll see signature spaces for managers, workers, et cetera. My heart's always a little bit happy there when I see that sort of thing on a procedure because it tells me, as an inspector, there's been some sort of interaction between management and workers, and there's an agreement. And you'll see at the very bottom there's actually a review date, just in case things change.
Moving on to this concept of culture. On our website, if you were to type in 'safety leadership at work', there's a program that is free to join, and it talks about two things. Now, think of your workplace, where you are right now. It has a certain climate. What does climate mean? Your experiences with systems, practices and the environment, how you make a dollar, how co-workers and leaders behave on any given day. It's a bit like the iceberg you see in the PowerPoint here, in the slide. Below that line is a culture of why things are done. There's unwritten rules how things are done, and there's either a shared or not shared importance and value.
The safety leadership at work program will assist you in so many ways. Its goals are to develop safety leadership capacity in your business, improve your safety culture and reduce your work related injuries and fatalities. Safety leadership at work, it allows safety leaders to develop over time by learning from others, it gives members direct access to peers, and encourages active participation by sharing experiences. And above all, it's free.
This looks like a very busy diagram, but if I draw your attention to the centre square, essentially it's driven by four main things. It's about demonstrating safety leadership. It takes into account the drivers of safety climate. It talks about involving others in safety leadership. And demonstrating safety leadership at all levels.
Moving on to best practice. I have thrown in a definition there. I did a bit of research, there are so many definitions of 'best practice', but essentially best practice is talking about a method or technique that has been generally accepted as superior to any alternatives because it produces results that are superior to those achieved by other means and because it’s become a standard way of doing things, for example, a standard way of complying with legal or ethical requirements.
In terms of best practice from an inspector point of view, in my previous investigations into serious injuries and fatalities, I've found that the root cause more often than not comes down to a term what I call the three Cs, which is essentially culture, communication and complacency. Injury prevention is about having a safety system of work at your workplace. On the surface it's about understanding that there is legislation that requires obligation holders to do something to ensure a safe work environment and its workers and others. And then I've put in these – if you look at the slide you'll see the five squares. So if you're at best practice, you've been through a process that includes risk identification, assessment and control. You've got safe work method statements that workers understand and endorse. You've applied the hierarchy of hazard control to the best of your abilities within the context. You've consulted with workers. And you've provided training and workers have been deemed competent in the relevant tasks.
I like to give an example of best practice in reality. This particular slide you see up there is a Category 3 winner of the 2016 Safe Work and Return to Work Awards winner. It's a company by the name of Metro Facades. And what they do is specialise in installing building facades, particularly glass curtain walling. And senior management worked with engineers and staff for a number of years to create a launch pad which is a system to install glass curtain walling from inside a building with the use of miniature cranes. The system eliminates the need for workers to be exposed to falls from heights, and reduces the need for workers to hold, restrain, position and manoeuvre the panels, which can weigh up to 400 kilos each.
So in summary, Section 27 of our Act talks about everyone having an obligation to ensure that they exercise due diligence. What is due diligence? The slide that I've put up here, my final slide, talks about you have an obligation to acquire knowledge of workplace health and safety matters. You need to understand the nature of the operation and associated hazards and risks. You need to ensure resources and processes to eliminate or minimise those risks. You need to ensure processes for receiving, considering or responding to information in a timely way. You need to ensure that processes and implementation for complying with those duties are thought through, and you need to verify compliance. By adopting these points and combining them with a healthy safety leadership culture, through adherence to best practice principles, you will well be on your way to significantly reducing your injury rate at your workplace. Thank you so much for your time today.
Ms Creagh: Lovely, thank you so much Peter for covering off the first part of our webinar. I'm going to hand over now to Dr Cameron Mackay. Just a slight content warning for anyone out there, we do have some quite visual content coming up, so just a warning on that. Thank you.
Dr Mackay: Thanks Helen. Hopefully it's not too confronting for everybody. So my talk today is – I mean I've called it "It's just a finger!" because that seems to be a fairly common thing. I mean, firstly, hand injuries are very common themselves. But it's fairly common to think, "Oh, it's just a finger, why is this taking such a long time?" So we're just going to look through a few common problems in hand injury and talk about why little things in hands can have a big impact, and then talk about a few things at the end about how we might streamline things and make it better.
To kick off we'll talk about a case study, and we've got a lot to cover. I could talk about this first slide for 25 minutes to an hour, but we'll go on from here and just mention this first case of a 25 year old labourer. He's got a small laceration from glass. He's a demolition worker. He was seen at a clinic and it was washed and sutured, the fingers were strapped. Ten days later the sutures come out and he's got a lot of pain. Pain more is than the doctor seeing him expects, so he's referred him to a pain clinic. And he sees the doctors in the pain clinic, he’s started on medication, but after three months, no progress. So eventually he still – he gets his finger and it's painful, contracted, he's in conflict by that stage with the employer because he hasn't been back to work so the employer sacks him. He goes to an independent review, there's no notes available for the patient, there's no diagnosis, so the new diagnosis is offered, a reconstruction fails and he ends up with an amputation.
So what went wrong? And the answer is pretty obvious that everything went wrong in that case. The rest of the talk focuses on what we actually need to do in cases like that, and how we can prevent them from becoming a disaster. The first thing to talk about is the hand and why it's unique. This slide shows, for starters, there's a lot of action in the hand. It's small relative to the rest of the body, but there's lots of muscles, tendons, nerves, arteries, lots of activity happening in the hand. And what's more, all of this action is very close to the surface, so it doesn't take much in terms of a crush injury or a laceration to get down to important structures. So if we look at the fingertip, as another example, we can see in the fingertip alone, very close, there's tendons, nerves, there's bone exposed and countless nerve endings.
This very strange looking next picture is another representation of why the hands are important. This is a graphic representation of what the brain representation of the body looks like. It's called the homunculus. And we look at how relatively massive the hands are. All of this relates to the number of nerve endings and sensory information coming from that area of the body. So we can see if we injure the hand versus the elbow, the sensory perception of that is going to be enormous.
So even very minor injuries – and if we look at the first little slide here – something such as this can create quite a bit of discomfort in the initial healing phase. The overall aim in hand injury though is maximum return of function in minimum time. Now, that might not be normal function in a mutilating injury, but we want them to do as much as they possibly can. This slide has gone a bit haywire, but it shows the cycle of deterioration in the hand. Swelling and immobility and inflammation in a hand all creates scar, which creates stiffness, which in a hand has serious effects on function.
So Hand Injury 101, what are the essential elements? And I've tried to break it down to very simple things today. Firstly, we need a diagnosis. That sounds very obvious, but in the first case study we spoke about today we didn't have a diagnosis until well into the case. We had not properly diagnosed what went on. But we need a diagnosis as the first thing. Then we can plan, and we can execute that plan. And, thirdly, we need to document what's happening along the way. And I'm sure we'll hear a lot more of that at the end of today's presentation about documentation. These seem simple. We'll go on to talk about why they might be difficult.
Diagnosis. Obviously treatment can't proceed without one, and missed diagnoses compound the problem. So, again, we saw that from the previous – the first case example, the diagnosis was missed which meant that a small tendon injury turned into an amputation. Then we've got false diagnoses. ‘RSI’ is not a diagnosis. Repetitive strain injury is history. RSI doesn't tell us anything that we can treat, and 'sprain' is pretty borderline. Again, it doesn't tell us anatomically anything about what injury we're actually trying to treat. So the quality of the diagnosis is paramount. And the small anecdote here is if you take a real estate agent and a carpenter, and you need something with your house, it's going to depend – it’s going to vary what you actually need depending on which one of those people you want to talk to. So if your balcony collapses you're going to want to talk to the builder. The real estate agent is just not going to be good enough. Diagnosis and quality of diagnosis is paramount, and that needs to be based on fact and skill.
This is more of a medical one about MRIs which are a bugbear. They can create a lot of over-diagnosis and confusion, which can create hostility and conflict. The MRIs can show up a lot of things that are irrelevant. If you MRI everyone's wrist, we'll all have something wrong with us. This is the first part of the gory slides about diagnosis. So, on first glance, the diagnosis is obvious, nail in hand from nail gun. A fairly common injury. I see quite a few of these a year, unfortunately. And we can maybe get more of a diagnosis by doing an x-ray – nail in hand, not involving bone. But that's probably still not enough if we're going to manage this injury appropriately. So surgical exploration is what's required. What we can see here, very interestingly as we look at the wound – and it pops up in a moment – is the nail has passed directly in between the nerve to the fingers and the artery to the fingers. Thankfully for this worker it hasn't injured them. But that nerve's going to be very bruised, and probably the worker will have numbness for a few months in one half of the finger at least. What's important here is if we'd not gone in and worked this out, we'd be at three months with a worker with a numb finger wondering what's happening and have no answers for them. And then we end up in the position where we're considering delayed surgical exploration of the nerve. A proper diagnosis at the start means we can make sure the worker will recover.
Medically, we need that diagnosis to expedite treatment. We don't want the hand getting stiff, because scar in the hand is very difficult to overcome later. So we want to avoid that cycle of things we discussed earlier, and a very careful balance between keeping things still so it can heal, but keeping it moving so we don't get stiffness. And that's where the real art of hand rehabilitation comes in.
Timelines are very important. We can't speed up biology. It takes as long as it takes. I tell a lot of my patients it's like watching paint dry, and I can't speed it up. So, particular injuries take a certain time to heal. But those timelines aren't all bad. They sometimes give us good structure around which we can build a program of rehabilitation and return to work.
For example, this here, a dislocation, it's going to take six months to rehabilitate this injury. That's the way it is. From the name of this talk, it's just a finger. It's just a finger, but that's going to get stiff, it's going to be sore, it's going to take a long time. Now, that's not six months to get back to work, it's six months of therapy and grief. This one, with an associated fracture, is going to take even longer. And these are a real problem for people, particularly manual workers. And if not done well, this is a fixed flexion contracture from just that sort of injury, and it's already had someone try and operate on it, and it's locked in this position. It's unsalvageable, and probably this worker will ask for an amputation. They can't put their gloves on anymore. And thinking about that as a practical aspect of manual work, with a finger that bent, you can't do your job.
So the plan needs to be holistic, and it needs to be early. And a cornerstone of my treatment is I outline the path of the program to the worker very early on. And I have them very early back to a suitable duties program. Now, that creates quite a few fights between me and some of my injured workers, but it is, overall, the best thing for them. It's very easy for me to say that if they've injured one hand, they're capable of using the rest of their body. But then it becomes a very tricky period of management between the worker, the employer, and the insurer, in WorkCover usually, about how they're going to balance that. And a lot of hostility develops when a worker is put on suitable duties, and an employer is hostile to that, or they don't listen to the restrictions. So that is where we all need to work together. The therapy then in the background is intensive, and any deviation needs to be managed early. So if they go off the reservation and they're not progressing, that needs to be handled early on.
From an occupational and psychological point of view, we need to know what they're doing so we can get them back. If they're not suitable for their normal job, and they're going to be a three to six month rehabilitation, then a host placement can be considered early. Total incapacity is very rarely in hand injuries very rarely more than a week, and only if they're inpatients or really struggling with therapy. I don't think it's very healthy at all for anybody to be a total incapacity. It's just not true, if you've got one injured hand, the rest of you is fine. However, if you've got lots of pain, lots of therapy, and you're psychologically stressed, we need to take that into account. There will be economic hardship we have to think about, cultural issues and chronic pain.
This is a little slide I doctored up to try and demonstrate my thoughts of the very early part of injury management. Down the bottom we have weeks. And very early on the patient is extremely interested in their injury. They're worried about how they're going to recover, they're worried about what's going to happen to them, will they lose their finger, will they ever be able to use it again, and work is the last of their concerns, early on. As we reach two to three weeks and things are healing and they can see their finger is going to be okay, they'll start to think about work again, and that's the sweet spot for getting them back into doing something. If they then start to progress and age, at six weeks if they're not back at work, or there's been hostility at work, or they've run into some troubles, they'll start to lose a bit of interest, and potentially start to consider other avenues of complaint or compensation. That's not always the case, but very rarely would people be considering other avenues in the first three to five weeks.
Hand therapy is intensive, and you might wonder when you've got an injured worker why they're always there, but there's lots to do, lots to manage. Swelling, stabilise things, keep things moving where we can, desensitising those sensitive fingertips – if you remember the homunculus with the huge hands – fingertips when crushed get really sore, very sensitive to touch, and we have to work on that. Work hardening, counselling and hypnotic suggestion is my favourite thing, where all comments are positive, not negative. Now, that's not universal, but the best therapists are the ones that do that. "Oh, that's normal Joe, it's fine, it's going to be okay, it's just a tingling sensation." Work them through it.
In my therapy, it’s a very quick – in my clinic, in the very quick picture of my clinic, the therapists work in a room next to my office, and I patrol it like a sergeant major and make sure everyone's on track at each visit. Maybe I'm a bit dominating, but I want to make sure that there's no deviation from the path, and everyone's as happy as they can be. We often have our heated discussions about suitable duties programs in this room. From a management point of view, we support our repairs, we mobilise what we can, we stabilise what we need to. We are positive about the recovery, and have a joint, unified plan about how it's going to go.
Documentation is the last point, and I'm sure we'll hear about this again later. Every workplace injury is a medico-legal case, and the documentation has to reflect this, though it's very uncommon. It's very difficult later on for an independent examiner or someone later to pick up a case of three or four months where nothing has been documented. The hardest ones are where someone is injured at work, and it's been swept under the mat for three months, someone has forked out for someone's medical bills for three months, and then it's gone hostile and there's nothing written down. It's very difficult to pick up medically, and it's difficult to pick up from a case point of view. If everything is written down, even if things go off the rails, an independent viewer can pick up at three months and work out exactly what happened. And often the initial medical reports give a very good clue as to whether the deviation has been on behalf of medical issues, or on behalf of hostility.
This is a very brief comment, 'there's nothing wrong with a negative laparotomy'. That means there's nothing wrong with, in a trauma setting in a big hospital, of opening someone's belly if you're worried to make sure they're not bleeding from a ruptured spleen. What that means in our setting is there's nothing wrong with over-calling something at the time and having something checked by a specialist who can just make sure that everything's on track and there's nothing serious going on. If it was over-called, and that small laceration in the finger didn't injure the tendon, that's fine, but at least we know that it's not a problem.
So what could possibly go wrong? Common pitfalls, as I said, neglect, neuromas, which are scars on nerves. That conflict in the workplace is a disaster for hand management. Legal coaching – now that might get me into some trouble – but that's either professional or at the water cooler, you know, if they're talking to Joe Bloggs who scored 20 grand from his injury last year, we can see, clinically, a deterioration in their rehabilitation. So we need to get their rehabilitation underway before any ideas about that start, and it's rare, but it happens. And biology. Some injuries just take a lot longer than others. Our fingertip crushes take a long time because they're sensitive. Those joints that I showed you, the first knuckle, the PIP joint, takes a long time because they're very irritable. This picture you see is a case of neglect. A relatively minor forearm laceration, put in a plaster for five weeks, and he comes out looking like that. It's painful, stiff, swollen, contracted, and from there, an 18 month recovery to a poor result.
Small lacerations can cause big problems. You can hardly see this cut here, but that has cut completely the extensor tendon, which lies directly underneath. Here's another example, same thing, very small cut, no extension, and this patient is trying to fully extend the middle finger, nothing there. So, small laceration, big problem. Similarly here, this is a mallet finger. So the bone has been fractured – I’ll just let the slides catch up – the bone has been fractured in this mallet finger. You can see the finger is dropped off there. On x-ray we can see the bone is fractured, and what that's done, it's pulled off the extensor tendon, or the tendon that bends the finger back. So this finger will remain in that permanently flexed position unless it's treated properly. So a small injury, it can be treated in a splint. If it's not achieved, there will be a deforming in the finger, and ultimately it collapsed.
Osteomyelitis is the next slide, which means an infection in the bone. In this case, a small laceration, or seemingly small laceration to the digit, but it's gone down to and gone into the bone. And what's happened is that without proper treatment the bone has become infected, and this ultimately requires an amputation of the digit. Small cut resulting in amputation from under-treatment. Other examples that everyone may have heard of, things like carpal tunnel syndrome, de Quervains tenosynovitis of the thumb tendons, trigger fingers, and dorsal wrist ganglion, all very common conditions that we'll see. And, equally, they all need the same things - proper diagnosis, a plan, a unified recovery plan, any deviation early and treatment, and then the proper documentation. Any one of these tasks can go well off the rails.
Here's a second case to consider, having mentioned that. A worker is injured when lifting objects off an assembly line. They go to the doctor, they're diagnosed with de Quervains tenosynovitis of the thumb. Then they're not seen for four months. They present back after four months of physiotherapy with three different therapists. They've had acupuncture, laser therapy, massage, taping, crystals, you name it, they've had the lot over four months. And they come back and present, and are sent on for independent review with very negative ideas about the condition. I talked before about positive hypnotic suggestion. The reverse also counts. So this, they come in making statements, "I'm over-compensating with my muscles. We are trying not to do that. I know that I'm doing this wrong." And all of these statements don't come from the patient, they come from one of the three therapists. Again, the diagnosis is fairly straightforward, the treatment wasn't there. They remain off work, they're frustrated. And what went wrong here was not in the diagnosis – that was correct – what went wrong here was the plan. So the plan initially may have been correct, but after a non-response of three weeks, it needed to be dealt with.
So, what can we do better? As I said, the key is diagnosis, and again, this seems very, very simple, but only yesterday I had a case come through where at one year there is no diagnosis, and the worker is still struggling. So having a diagnosis, what is the injury? And wrist sprain, sore finger won't cut it. We need to know exactly what's going on, so then we can develop a plan. A plan of management that involves hand therapy, a suitable duties program, a graded return to work, work hardening, and ultimately try and get them back to that maximum return of function in minimum time. All of this should be written down so if things go off the rails we can monitor our progress, and independent assessors can come in later, both medical and legal, and find out exactly what's happened and where things have gone right or wrong. And the basis of this is a clinical or medical case report, which forms the start point of any of these cases. The progress from there needs to be monitored closely, and any deviation from what we expect to happen should be identified early and acted upon. That's all I've got. I think I've gone in under time, and we'll deal with any questions later. Back to Helen.
Ms Creagh: Lovely. Thank you so much, Dr Mackay. Certainly some very detailed information in that presentation. And there's been some questions coming through. Just confirming that the content of the slides generally will be made available after the webinar, just not the photographs, I've been advised, but the content will be made available and the participants will receive an email when that's available to access. Now I'd like to hand over to Brent from Konekt, who will take us through to rehabilitation.
Mr Cunningham: Thank you, Helen. Good afternoon everyone, thank you for your attendance. I'm an exercise physiologist with Konekt, working as a rehabilitation consultant, and today I was going to go through and discuss what rehabilitation is, contamination management, indications of poor progression of rehabilitation, as well as some examples of good and bad suitable duties.
As you would have heard in the previous presentations, there is a lot to consider from both an injured worker perspective and an employer perspective when rehabilitating an injury and returning to work. As we saw earlier on, common trends in the manufacturing industry and, in general, any sort of industry are lacerations, foreign bodies, and minor crush injuries. And I wanted to go through and talk about some of the considerations with the rehabilitation process and these injuries.
With lacerations, they can have varying degrees of significance, and this can impact on the rehabilitation process. With the medical guidelines, each individual's rehabilitation could look quite different, and the impact on their functionality could also be quite different. What we'll try to do with rehabilitation and return to work is return people to work as early as possible. As we know, the longer a person is off work, the harder it is for them to return to work. But this process can be so individualised that it needs heavy consideration from all stakeholders involved.
When exploring return to work or rehabilitation for an injured worker with a laceration, we need to consider the impact on their functionality, as well as the medical timeframes for healing, what their requirements are for that specific rehab. But, generally, we would try to encourage them to return to functioning as quickly as possible, and within whatever way that we could do that. Generally, if we can explore different types of duties within that environment for a period of time, then that is an indication that we can have them back in the workplace in a meaningful role, and performing some sort of duty that will improve their functionality, and help with that return to work process ultimately. As a rehabilitation consultant, we're there to assist both the employer and the injured worker through the process, and liaise with the treating doctor, the specialist and all stakeholders to ensure that the process is transparent, everyone is involved, and so we can have a successful and positive outcome.
Another injury that is commonly seen are foreign bodies, and foreign bodies can usually affect the eye. They seem to have a different impact on each person, and therefore impact on the duration of their return to work, as well as the potential duties that they can return to. We need to understand what requirements they have with their eyes in that role, understanding the visual acuity and perhaps the depth perception requirements, and this could impact quite heavily on any sort of safety critical role where they are required to use their eyesight for complete safety overseeing of that role. So here we need to understand what potential duties they could be doing, how we could modify the duties, and understand the PPE requirements, especially if they are required to perform high risk activities – which there are a few examples of there – and you would have heard from Peter earlier on the importance of PPE and the considerations of risky tasks within the workplace.
Crush injuries can be quite significant in that they affect various tissues within the body, and the rehabilitation process for these injuries can be quite slow, and have a very staggered and graduated progress. When there's a crush injury, we need to consider what impact there is on their functionality, what is available within that work environment, and if in fact there are any duties available within that work environment to accommodate the level of disability they may be experiencing, whether that's for a period of time or permanent. In doing this, we can then ensure that we're understanding what tasks they can be meaningfully engaged in throughout the day to ensure that they're able to function as they once normally did, but perhaps in a modified capacity. And alternative avenues we can explore for this process are OT assessments of their functionality, advice from the treating doctor and specialists, and also the greater impacts on their ADLs, activities of daily living, such as driving and any potential modifications that may be made to their vehicle to allow them to transport to and from work or facilitate the process of them going about their life as normal.
Not only is medication a consideration with crush injuries, but also a consideration with any form of injury and rehabilitation within in the workplace, to ensure that the medication doesn't have any significant impacts on their ability to safely perform the duties that they were doing, and if it does have impacts, considering what time during the day these impacts occur, how it does impact them, the influences that will have on their return to work, and understanding this process to structure a return to work plan that's going to be positive for the injured worker and the employer alike.
One of the areas that we're going to cover today is contamination management and the strategies that we commonly use for contamination management, as this can be quite various, and with lacerations, precluding a person from work because they have a laceration due to the concerns of contamination is quite frequently seen in our industry, however it doesn't always have to be the case. It's about delving deeper to understand the impact the laceration has on their functionality, and how we can go about addressing the laceration and wound management whilst they are engaged in some form of meaningful duty or suitable duty.
I've placed a few strategies at the top there that we've recommended, such as leather coverings for the actual wound site or laceration, undergoing more frequent dressing changes, utilising cotton glove inserts inside their PPE, the gloves that they're normally using if they are using those sort of gloves, larger gloves to allow for the bandaging and wound management underneath, and having available first aid resources as well as trained first aid officers to assist with any potential reopening of the laceration and go about the correct medical treatment processes if this does occur.
I've provided a few examples, as it can vary so much with lacerations in the workplace, of different lacerations that we've seen, and how these were managed. There is both positive and negative examples. One example was a laceration occurred to a male's finger in a workshop, and the rehabilitation consultant became involved, organised weekly dressings with the practice nurse, rather than attending the hospital, which couldn't be done on an as frequent basis. There was also identification of strategies for the wound management and laceration contamination management, having available several pairs of cotton inserts for the glove to facilitate them always having a clean pair of gloves. And as a result, in addition to the medical treatment and wound management, they were able to return to work in suitable duties within one week of sustaining the injury. So, as we know, the longer a person is off work, the harder it is for them to return to work. This is an example of where we were able to get them back into the workplace and the environment, but in a way that's suitable for them and the rehabilitation they're undergoing.
Another example is a partial finger amputation that occurred within the manufacturing workshop. The injured worker was taken to hospital, provided with four weeks off work. As a result, the wound became infected, and the injured worker underwent a specialist review which suggested that perhaps stitching the fingers together might have been a way to assist with managing the wound at the time. When the rehabilitation consultant became involved with the employer and the insurer to understand the process, they identified that there was in fact a requirement for an urgent referral to a hand clinic to discuss the injury with the specialist. This occurred the day after meeting with the injured worker. Ultimately the injured worker was operated on, an amputation occurred, however it wasn't as severe as it could have been had the process been delayed. And following surgery an example of contamination management was leather capping to the area, cotton glove inserts, larger gloves to allow for the leather capping and the wound management dressing, and grading a suitable duties plan over time.
Another example, quite a horrific and poor example of wound and contamination management, is a male worker in a sawmill that had quite lax regulations surrounding their workplace health and safety, where he had a serious de-gloving injury to his calf when a faulty – a known faulty forklift dropped its load, destroying the calf muscle. As there were no first aid supplies available, they actually wrapped the wound in rags that were used to mop up grease and oil and they were transported to hospital in a ute rather than calling an ambulance. As a result, there was a secondary infection, which had quite a big impact on that individual's functionality. But an example could have been having first aid supplies available, trained first aid officers and calling an ambulance to assist with that contamination management.
And the final example is quite a good example of a female that sustained an unexpected needle stick injury within her workplace. The first aid officer identified that it was quite serious, provided the appropriate puncture site treatment, and took the injured worker to hospital, where they underwent screening for the diseases following the needle stick injury, and in accordance with the medical requirements, they were scheduled for appropriate checkups to ensure the disease incubation periods were screened for.
An example of a way a rehabilitation consultant can assist with the return to work process is initially performing a work site assessment. And I've got an example there of how a work site assessment can be beneficial. But ultimately it's there to understand the roles and duties and tasks that that employer has available, and the demands of these tasks day to day so that we can develop an understanding of what would be appropriate based on the level of functionality for an injured worker, and how best to structure the plans over time, knowing what duties and tasks we can grade them through, or alternative duties that they may have available if an injured worker is unable to return to the same duties they once were doing.
Ultimately from this process – as you heard Peter talk about – task analyses can assist with developing a job dictionary. And this is essentially a library of different roles that the employer has available that can be a quick resource if you are working with someone that's returning to work. An example of this isn't specific to the manufacturing industry, but a 33 year old male who was working remotely was performing a form of burn off and accidentally added an accelerant to the process. As a result, there were significant third degree burns affecting various parts of the body and an outcome of that was his fine motor skills and thermoregulation were affected. He wasn't able to return to the similar duties that he previously was doing, however, through a work site assessment and identification of a host employer, they were able to understand the requirements of the potential alternative duties and, from that, identify that where they previously were going to place the workstation within the warehouse on the floor that was quite warm, identified that a better ventilated work station was more appropriate, times during the days that it was more appropriate to perform duties to assist with the thermoregulation process and to understand the scar tissue management requirements, and ensure that the duties and times during the day were not going to impact on the scar tissue management. And as a result, the injured worker was successfully employed by that host employer.
I'll briefly just touch on rehabilitation, as it can be commonly thought of as the physical or non-physical rehabilitation that an injured worker undergoes. However, rehabilitation is an all-encompassing process that within the occupational industry it looks at the bio-psychosocial factors involved, so understanding not only the medical and treatment requirements for that individual, but also the impacts on their thoughts and perceptions of the workplace, the impacts on their family life, as well as litigation and compensation requirements.
When a rehabilitation assessment is undertaken, it is holistic in terms of encompassing and understanding the full aspects of the injury on that injured worker and how that influences the return to work, the employer and their requirements, as well as the individual's life and quality of life. Every rehabilitation process will be individualised, as there's no cookie cutter or one size fits all with rehabilitation, and throughout the process ensuring that the process is transparent, there's open lines of communication between all stakeholders to ensure there's a successful return to work and injury recovery. And with the bio-psychosocial flags, they can give us an indication of areas that we can monitor throughout the rehabilitation process to ensure that it is in fact progressing towards the specific goal set for that individual, or if it isn't, identifying the flags and barriers that are arising, and using early intervention to overcome those potential issues.
Rehabilitation, just a quick overview of the process. Generally an initial needs assessment will be completed – which encompasses a lot of what I discussed on the previous slide – essentially understanding all the requirements and impacts of that injury on that injured worker, engaging with all the stakeholders, the doctor, the employer and the injured worker and family alike, identifying if a work site assessment is required to assist in developing a suitable duties program, and development of the suitable duties program. And through this process, using the work site assessment or understanding of the employer from previous injuries, we can identify duties within the workplace that they were doing, modifying them, alternative duties they have available, ultimately alternative employment using a host employer, as well as the barriers to return to work and how to best overcome them, and identify the work capacity requirements and how to structure a work conditioning program to assist with this process. And I'll touch on good and bad suitable duties later on in the presentation. Throughout the process, we will monitor the flags against the goals, recommended medical healing timeframes and rehabilitation timeframes, and using communication, liaise with all stakeholders to ensure that everyone is aware of the process and how it's progressing, or what in fact is happening with the rehabilitation at that time.
How do we keep employees at work? This can be quite a challenging issue if, for example, there are various structured tasks within that workplace. So if there isn't a lot of room to move with the tasks in the work environment, then what we need are more appropriate and meaningful duties elsewhere, or potentially if they do have the option for alternative duties within the workplace, what the training requirements and support requirements are for them to transition across. For example, a process worker transitioning into an administration role might require further training and support, understanding of how that would work, or it may not be an appropriate type of role for him, or they may not feel meaningfully engaged within these duties so we need to explore alternative options. This is best done through consultation with all the stakeholders, face to face with the employer and employee to understand the work environment, how that would work, what the employee looks like in that work environment, and what potential avenues can be explored, alternative employment options.
This is indicators of limited progression. So through monitoring the bio-psychosocial flags throughout the rehab, we can identify potential disengagement with work, changes in the psychological health of the injured worker, the potential barriers with the progression of rehabilitation, as well as any breakdown in communications affecting the return to work. And I've provided a few case studies and also some strategies on how to look and monitor these potential barriers that are arising and limiting the progression of rehab and the return to work process.
An example is a 41 year old male was on a return to work process for quite a long period of time, and remaining on the same hours and suitable duties. In addition to the doctor suggesting that the rehab should have progressed past this stage, the rehab consultant and insurer and employer weren't able to progress the return to work hours, and as a result they identified that the injured worker was in fact on reduced benefits, which was a financial challenge for him and his partner in terms of affording after school care. So they identified this barrier and came up with a strategy. So the strategy was to just increase the hours, but increase the starting time or shift the starting time to earlier in the day to facilitate the injured worker being able to still collect his child from school and avoid paying after school care.
A strategy that could be used through the rehab consultant process is monitoring psychosocial tools. So looking at pain scores, mental health scores, and this could give us an idea of progression from initial as through to progressive times, or as well as using it when we feel like barriers may be arising.
An example of good and bad suitable duties is that a good idea of suitable duties would be a plan that's identified through consultation with all stakeholders. So consideration is given to all facets of rehabilitation, the injured worker's capacity, and how this impacts on the duties they once were performing, as well as their return to work, ensuring that it's specific to the individual, that there is improvisation there. So sometimes a bit of creative thinking can go a long way in terms of getting an employee back to work. And support of all parties, especially the direct line supervisor, to ensure that they're involved in valuing the process. This will help with the seamless process with return to work.
Bad suitable duties are in fact the opposite, but also having vague or non-specific goals and duties, as well as not involving the injured worker in the process. As we know, meaningful engagement can be quite positive in terms of adding value to their return to work. Ultimately with suitable duties we always look for best practice. So duties that are appropriate, duties that can be easily switched to with minimal training requirements, but also ensuring that if that is the case, that they do have the support with any further training, and monitoring the flags and the process throughout to ensure if there’s any barriers arising, which there are a few examples there.
I've provided an example of good and bad suitable duties. I will just run through one of each. So a good example of suitable duties is a bus manufacturer that required an employee to undergo suitable duties, use the process as a way to use the injured worker as a mentor to trainee staff. So in order to use them as an assistant to teach them all the duties, even though they could only perform modified aspects of those duties, to ensure that the most experienced workers, even though they may have been injured, were meaningfully contributing to the business, at the same time as training the new staff.
And a bad example there was a registered nurse was placed in an alternative role due to her injury, and although she was engaged with the role and wanting to do the best she could, she didn't receive the training and additional training that she required to complete that role competently, and as a result she developed secondary mental health factors in addition to her physical injury.
So summarising, with the rehabilitation process, always utilising early intervention and reporting of the injury can ensure that the process commences a lot earlier, there's guidance throughout the process supporting both the employee and the employer, and to assist with identifying any additional requirements or assessment requirements. Thank you.
Ms Creagh: Lovely. Thank you so much, Brent. Okay, and concluding our webinar for today, I'd like to introduce Ross McConaghy from Jensen McConaghy Lawyers. Thank you.
Mr McConaghy: Thanks very much Helen, and good afternoon, ladies and gentlemen. As I think was well demonstrated in Dr Mackay's graph, once injury, treatment, rehabilitation and return to work issues have been dealt with, attention often then turns to legal redress, and that's where my role as a WorkCover panel lawyer commences. By the time it reaches me of course things have been sanitised, and nothing is quite as messy as it was at the stage that Dr Mackay might have become involved.
As you've heard, minor injuries can develop into serious problems for employers. They can often lead to significant damages and awards under our common law system. This afternoon I'll give a quick overview of the Queensland common law system as it relates both to liability determination and the assessment of damages. And I'll then finish with some case studies.
Okay, the first thing to be aware of, if you're not already aware of it, is that your WorkCover policy covers both your statutory no-fault benefit and common law damages liability. Only a relatively small percentage of claims that were subject to statutory benefits will proceed into the common law system. I think roughly around a quarter at the moment.
We talk about common law claims. What is common law? Well, essentially it's the law created by judges, as distinct from laws developed by parliament. The established principles from those judge-made decisions govern how current cases are treated, subject to some statutory modification. Now, in Queensland we refer to it as a common law system, but it is in reality a hybrid model which is based upon common law principles modified by statute, both in relation to how liability is to be determined, and also in relation to how damages are to be assessed.
Well, why do injured workers pursue common law damages and what's the catch? Why doesn't everybody? Well, the attraction is that damages claimed under the common law scheme are generally much greater than compensation that might be available through the no-fault statutory scheme. For example, the statutory scheme doesn't compensate an injured worker for their future lost earnings or lost earning potential or capacity. The catch, however, is that the injured worker has to prove that the employer was negligent in some way, and that negligence led to the injury.
So what does an injured worker need to establish in order to successfully pursue a common law damages claim? Essentially they must establish firstly that the risk of injury was reasonably foreseeable. That's in the sense that it was neither farfetched nor fanciful, that that risk was not insignificant, that the injury was preventable, and that if the worker alleges some precautionary measure should have been taken by the employer, that precautionary measure which would have, or it's alleged would have prevented the injury was a reasonable response to the risk, and finally that the injury was caused by the materialisation of the risk in question, which is what we refer to as legal causation.
It's well-established in Australia that apart from any statutory duties that might be owed under the relevant workplace health and safety laws, that all employers owe their workers at common law a duty of care to take reasonable steps to prevent or reduce the risk of injury. That's the general expression of the duty of care. But within that duty there are a number of specific duties that have developed over time, and I've listed some of them there. That's not an exhaustive list, but for example to provide, maintain and enforce a safe system of work, to provide safe and appropriate plant and equipment free from patent defects, to provide safe premises, to instruct workers in the safe performance of their work, and to provide adequate supervision and assistance.
Now, an injured worker will only succeed in a common law damages claim if he or she can establish that the employer has in some way breached a relevant duty of care owed by it, and an employer will have breached its duty of care where those three matters listed on the slide are satisfied. Firstly, the risk of injury to the worker was reasonably foreseeable and not insignificant, and there were measures available to the employer to protect the worker from the risk, and the employer unreasonably failed to adopt those measures. Now, not all risks in the workplace require a response from the employer. If the risk of injury is insignificant or not reasonably foreseeable, then no response may be required.
Now, again, apart from any statutory duties that a worker may have in relation to their own workplace health and safety, there are also common law duties. And in the event that an injured worker has been found to breach one of those duties, then they're exposed to a finding of what we call contributory negligence, and the result of that is that their damages will be reduced by the extent to which a court determines that their own negligence has contributed to the injury. The first four examples I've listed on the slide are probably the most relevant for today's purposes, where, for example, the worker has failed to comply with safety instructions given by an employer, or where the worker has failed to use protective clothing and equipment provided by the employer in a way in which the worker has been instructed to use them, where the worker has failed to use anything provided by the employer that was designed to reduce the worker's exposure to a risk of injury, or where the worker has inappropriately interfered with or misused something that was designed to reduce their exposure to a risk of injury, for example removing a safety guard from a lathe or some other type of machinery.
Okay, so once liability has been established, how are damages then assessed? The assessment is broken down into what we call 'heads of damage'. Part of this is a little bit of science, there's a little bit of maths, and there's a little bit of intuition and crystal ball gazing. The first component or head of damage is what we refer to as general damages. They are damages which aren't quantifiable by reference to economic loss or some cost that's been incurred, it's what we more particularly refer to as pain and suffering and loss of enjoyment of the amenities of life. In the old days, prior to some amendments to our legislation going back about 15 years ago or so, general damages were assessed simply by referring to previous court-made judgments. Now, in Queensland, we operate under what we call the ISVs, the injury scale values, where we have reference to a 0 to 100 point sliding scale, an injury attracting 0 points being one with literally no injury, to an injury attracting 100 points, which is an injury of the most terrible type of injury that could possibly be imagined. So somewhere along that sliding scale we have to drop the pin, effectively, and determine what the relevant ISV is, and each of those points attracts a statutory value in monetary terms. So that's a relatively straightforward assessment these days, and it's made by reference to things like assessments of permanent impairment under the AMA guides, for example.
Past economic loss, that's really simply a calculation of the lost earnings occasioned by the injury that's occurred in the past. Future economic loss, don't let the title deceive you. A person who has returned to full employment on their pre-accident income can nonetheless still receive, and often will receive, an award of damage for future economic loss. Now, the concept behind that is that what that person is being compensated for is not the – well, it can be, but is not solely the actual loss that they will incur, but it's also the loss of their earning capacity. So, for example, if you have a manual worker who sustains an injury which nonetheless allows them to continue working in their role, but precludes them from a range of other occupational pursuits, that person is entitled to be compensated for the restriction in their earning potential. And what that might be is dependent on a whole range of factors. Past special damages. Special damages is simply a fancy name for out of pocket expenses, so it's medical expenses, pharmaceutical, rehabilitation costs, all those sorts of things. And future special damages are those costs likely to be incurred in the future directly attributable to the injury.
The basic concept of damages is that they're intended to place the injured worker as near as possible, in monetary terms, in the same position they would have been as if the injury had never occurred. That's the best our system can come up with, it's the best any system in the world has been able to come up with. You can't physically put the person back into the position they were in, but the best we can do is to compensate them in monetary terms. Damages are assessed on a once and for all basis. The injured worker only gets one bite of the cherry, they don’t get to come back and sue again and again if they're not satisfied with the damages they received the first time. And damages aren't subject to taxation. That's because they're assessed on a net, after tax basis, and if they were subject to taxation then the injured worker would be unjustly out of pocket. Damages can also include interest on past losses, that's at a set statutory rate, and in some cases there is also an opportunity for damages to be awarded for the value of care services provided by, for example, family members and friends or external commercial care providers.
Pre-existing conditions. This is something that occurs quite often, and I'm sure many of you have had experience of this where you might have a worker, particularly a mature worker, who has suffered no symptoms at all, injures their back and then once they undergo assessment it's discovered, for example, that they might have advanced degeneration in the lumbar spine, or something similar. Now, that person may well have gone through life, as many of us do, with degenerating spines with no symptoms whatsoever. The workplace incident occurs, and then that person has symptoms, which may or may not have developed in the fullness of time absent the work event.
Now, our role as defendant lawyers is to try to establish how that pre-existing condition might have affected the worker in the future if the incident hadn't occurred, if that's what we're going to allege, that at some point that worker, for example, might have had difficulty continuing on in their pre-accident role simply by virtue of the state of their spine. That requires expert medical evidence, which is often very challenging because the law requires there to be a reasonable degree of precision, and of course what we're asking of the doctors in those cases is to tell us when those symptoms would have come to light with a degree of precision. Of course, that's nigh on impossible.
In other cases you might encounter a situation where a worker already has some condition, illness or pre-existing injury, which makes the injury sustained in the relevant event far more serious than what it might have been in a person who was otherwise able bodied, and that's what we refer to as the 'eggshell skull rule'. A very simple and obvious example of that might be a worker with vision impairment in one eye who sustains a permanent injury to their good eye, and now the impact upon that worker is far more devastating than it might be for a person, for example, with normal eyesight in both eyes who sustains an injury to one eye. So that's the luck of the draw, unfortunately, and the damages that flow from the first example obviously are going to be far greater than in the second.
I'll move on to some actual case examples. The first is a young boilermaker who suffered a compound fracture of his index finger on his left hand, which was his dominant hand. He was assessed un-controversially with an 8% impairment. Now, as a result of that finger injury he has ongoing discomfort and stiffness in that finger, which is relatively unrelenting. He is a stoic individual, he returned to full employment, he had minimal time off work – I think around three months – but he went back to his employer who was thankfully a very accommodating employer, and returned to his pre-accident role on his pre-accident earnings. Now, the difficulty for that fellow is the principal task in his role was welding, and his left index finger was his welding finger. So he had to adapt to welding with his right hand, his non-dominant hand and, unfortunately, as a result of that the quality of his welding has declined. Now, also involved in his role is manually handling obviously large weights and sheets of steel, and he has difficulty with that. Now, for that fellow, if he was to find himself out of employment, he would be at a distinct disadvantage on the open labour market.
Now, in that case, just talking about PPE, he was wearing his assigned welding gloves, but unfortunately they didn't provide any protection against crush injuries. He was performing a task that he had performed many times, and in the way that he'd been shown how to do it. He was cutting a sheet of steel plate which was rather large, about a metre across, but unfortunately in the process of that, one side of the sheet gave way and his finger was caught in a pinch point. Now, there was available an overhead gantry with a magnetic lifting device, but unfortunately he'd never been instructed to use it. There was no risk assessment or safe work procedure which identified that risk, nor which required him to use mechanical assistance. Now, in that case his damages award was in excess of $150,000.
The second case is really, I guess, an instruction in appropriate PPE. This fellow, coincidentally, was another boilermaker who received a penetrating eye injury using a hot saw to cut a length of steel bar. He was wearing his protective eyewear, but the steel splinter was still able to make its way into his eye. The employer in that case thought they'd done everything properly, and it was very difficult to be critical. They had done a risk assessment, there was a safe work procedure, there was a requirement to wear protective eyewear which was enforced. Unfortunately for this employer, it was the wrong kind of eyewear. Now, had they made inquiries of, for example, the manufacturer, Workplace Health and Safety Queensland, if they'd had reference to relevant Australian standards, they would have ascertained that the type of eyewear he should have been wearing was a different kind, so a very simple inquiry might have avoided that injury altogether.
The third example is a 36 year old female kitchen hand who suffered a serious laceration to her hand when she reached out to catch a falling drip tray which had a very sharp edge. Now, she sustained a nasty laceration to the webbing between her index and middle fingers and then, unfortunately, developed an infection, and then subsequently carpal tunnel syndrome. And there was medical evidence which established a causal connection to the original work injury. The liability in that case had been conceded by the employer because there were steps which could have been taken – very simple steps which could have been taken by the employer to avoid the requirement for her to be putting her hands anywhere near the sharp edges of the drip tray. That woman, just out of interest, was awarded in excess of half a million dollars by the Brisbane Supreme Court.
The last example is a fairly dramatic example. This is a 31 year old fellow. He was a labour hire worker whose task day in day out, effectively, was to use a pneumatic wrench or metal gun to affix nuts onto large bolts on pipe moulds. So he did that eight hours a day, five days a week for six months without rotation. He developed, towards the end of that period, symptoms in both forearms and was subsequently diagnosed with carpal tunnel syndrome. Unfortunately for him, he developed complex regional pain syndrome and went on to develop some sort of bone necrosis, which resulted in one of his arms being amputated below the elbow, and he is missing several fingers of his other arm, which is effectively useless. That's a classic and very sobering reminder of the necessity to rotate any workers that you might have who are performing tasks which are repetitive.
So, I guess the morals of those stories, and touching upon some of the matters that Peter addressed at the outset, firstly, and from the lawyers' point of view, we love pieces of paper. We love paper with writing on it, it's even better if it's signed. So risk assessments, it's very important in your workplaces to assess the tasks that are carried out by each of your workers, what's involved in those tasks, what are the risks arising out of those tasks. If there are risks, develop safe work procedures in the format, for example, that Peter suggested which might minimise or reduce the risk of those injuries materialising.
Next is to implement that system. It's no good having a bookshelf full of safe work procedures that none of your workers know about. They've got to be trained and it's got to be enforced. And that's the last point, which is continuous enforcement, and reinforcement of those procedures, and if people aren't adhering to the safe work procedures, then appropriate disciplinary action. On that note, I'll hand back to Helen. Thank you very much for listening.
Ms Creagh: Lovely. Thank you very much, Ross. Okay, so that concludes our four presenters for today. We have received some questions during the presentations, and just being mindful of time, we will cover perhaps two or so questions, and then we will be able to publish some more specific answers to questions which came through on our website when the webinar does go live. So we do have a couple of questions which have come through for Dr Mackay, and I will just pose one here for you. The first one is, “Can you please give any suggestions on how to work with a surgeon who is reluctant to allow an injured worker to go onto a suitable duties plan, particularly when it is the non-dominant hand that is injured?”
Dr Mackay: Yes, that's a tricky question because people will vary in their practices. The first thing is it will depend on how the patient or how the worker is about it. So if the worker's on par with you, the easiest thing to do is for them to bring it up with the surgeon they'd like to go to work, and if that doesn't work, they can easily get a second opinion from a treating. And outside of that, particularly in WorkCover and insurance cases, it's not under MBS, so they don’t need a referral from a GP, they can seek a second opinion without referral from the GP.
The third way of going about it is to develop a relationship with medical practitioners and specialists that you use all the time, be it for knee or shoulder or hand injury, and have someone that is your go-to person that you have an established relationship with and that you can ring and say, "I've got an injured worker, can I bring them in Monday and work out a plan," and they can manage the rehabilitation with you from there. It's much easier.
Ms Creagh: Excellent, thank you. And I have a second question. This is in relation to responsiveness for employers. “So if a GP cleans one of the worker’s wounds, how does an employer know if the quality of the GP's work is sound, or when a specialist intervention is needed?”
Dr Mackay: Yes, the situation there is fairly similar and, again, difficult. Again, if you've got an established relationship with someone, you can get the primary or emergency management at an emergency department or a GP and then move on to someone that you know and have a relationship with to check things over and make sure it's on track. You could ask the GP. Just say, "Look, we'd like to see someone about it." A lot of GPs might get offended by that, so in the first instance have the primary management given and then look to having a specialist referral either by the GP or independently, if you're suspect. But I would encourage – as I said, the diagnosis is paramount, so if you're uncomfortable and you think, "No, I really would like my worker to see a specialist about this," discuss that with the worker and say, "I think you should see a specialist and make sure we're on track," and most workers would be happy for that in that early period when I said that the injury is paramount in their thoughts. If you said, "I want you to see a specialist about this, I think it's a good idea," I think most workers will go along with that knowing they're getting optimum care. So I think the first thing is to be on the front foot about it and just making sure you've got everything tied up and established. That will only ever look like diligence on your behalf.
Ms Creagh: Excellent. Thank you very much. Okay, we have a question for another one of our panel. This is a legal question which has come through for Ross McConaghy. Ross, we have a question which says, “Does contributory negligence consider what the worker ought to reasonably know, i.e. gravity?”
Mr McConaghy: Thanks Helen. Yeah, that question probably goes more to primary liability, and I mentioned earlier the steps that employers are required to take and what is a reasonable response to a risk, and that in some cases no response is required. Excuse me. There's no duty, for example, to necessarily take any precautions against risks that are obvious. As long as human beings walk upright they're going to injure themselves in any myriad number of ways. The test ultimately is for the employer to do what is reasonable, and it's not a duty to absolutely guarantee the safety of a worker, the duty is to take reasonable steps. So the risk of falling down, for example, or falling down a perfectly normal flight of stairs, if that's part of their role, it requires no particular response from the employer.
Ms Creagh: Lovely. Thank you very much, Ross. Okay, that is probably all we have time for with regards to live questions. We do have some other excellent questions which have come through which are probably more specific relative to particular working environments and specific working conditions, and we'll attempt to address those specific questions and provide some responses when we have the webinar go live on the website.
So, in conclusion, I'd just like to thank you all for attending today's session. So, as we mentioned, a recording and copy of the presentation will be made available on our website over the next few days. We would also welcome any feedback that you have on today's session, or suggestions for topics, or formats for future sessions. There will be a short survey which will pop up at the end of the webinar and it will give you an opportunity to provide feedback or suggestions on today's session or for future ones. So thank you again for all of your attendance today, and I thank our panel for all of their participation, and we will be looking forward to you joining us for all future webinars and educational sessions. Thank you.
Questions and answers
Answers to the questions we didn't have time to answer during the webinar are listed below.
What controls can be made for "Hand and Arm Vibration syndrome"?
This page on the Safe Work Australia website is a good resource on this topic.
With regard to lacerations does an employer need to evaluate the quality of the GP's work?
The employer cannot really evaluate the GP’s work. Many employers control this by developing relationships with treating Doctors they trust and have had previous good results with. If in doubt, get another opinion.
Dr Mackay mentioned that no photos would be included. Is this due to privacy constraints?
Yes, those photos are unable to be released as they are Dr Mackay's real cases.
Dr Mackay can you give any suggestions on how to work with a surgeon who is reluctant to allow a worker to go on an SDP particularly when their dominant hand is not injured.
This is tricky. As mentioned above, many employers developed a team of treating specialists they trust to provide timely and accurate information. You will not have much success in directing a specialist to another way of thinking but other opinions are always available.
Do you have any recommendations for PPE in a very dusty environment with a mean particle size 2micron - with eye and lung safety in mind.
A particulate respirator is used to protect against dust. The choice of respirator/filter combination (e.g. disposable, half-face, full-face or powered air purifying respirator/ P1, P2 or P3 filter) will be dependent on a risk assessment that takes into consideration factors such as the airborne concentration of the dust, the nature of the dust (e.g. wood, silica, etc.), work factors (e.g. wear time, work rate) and environmental conditions (e.g. heat, humidity).
Australian Standard 1715 Selection, use and maintenance of respiratory protective devices provides useful information to assist with respirator selection. Likewise, the selection of safety eyewear (e.g. safety glasses, goggles) will be dependent on the airborne concentration of the dust and its compatibility with the respirator. Higher order controls such as ventilation and dust suppression systems should also be considered.
For further information, consult a PPE supplier.
Are there any gov regs on specific PPE for very specialised industries and if so where do businesses find them?
The PPE provision of the WHS Reg (s45) does not address specific industries. However there is PPE guidance for some specific industries (e.g. spray painting) on this website.
A worker sustained a laceration. They then go on leave and, for example, go camping. They return a week or two later with an infection requiring surgery and significant treatment. Where does an employer stand from a liability perspective in relation to additional treatment / medical costs and potential common law?
An employer is liable in damages for the consequences of an injury, except in circumstances where some intervening unforeseeable act or event occurs that increases the loss or damage suffered by the worker (for example, negligently performed surgery that results in further and/or different injury). Lawyers refer to this as a "novus actus interveniens". In the example of a worker suffering an infection, for example, it may be difficult to prove (and the onus of proof rests with the employer) that the infection was the result of poor wound management as opposed to being a foreseeable consequence of the laceration. If it was a foreseeable consequence of the laceration, even with proper wound management, the employer will be liable for the effects of the infection as well.
Does contributory negligence consider what the work ought reasonably know ie gravity?
The question relates more to the issue of the duty owed by an employer to a worker. The law only requires that employers do what is "reasonable" to prevent or minimise the risk of injury. Some risks are obvious (eg, falling down a flight of stairs). A worker also owes a duty to act reasonably and not to expose themselves to a risk of injury. If the risk of injury is clear to the worker, but they proceed without regard to their own safety (for example, removing a safety guard from a lathe), then a finding of contributory negligence is likely.
What test is applied for future economic loss where the employee is working in pre-injury role (that the worker ought reasonably know)?
As discussed in the webinar, a worker can still be awarded an allowance for future economic loss even in circumstances where the worker has returned to their usual duties in their pre-accident role and on the same wages. The award of damages in those cases is designed to reflect the loss of income earning potential. If, for example, the worker has an understanding and supportive employer who continues to employ the worker even though the worker is unable to work at the same speed or requires assistance with certain tasks, that worker might be at risk if his employment ceases for whatever reason (for example, where the employer ceases to trade). The worker may be at risk on the open labour market because of their injury, competing with able-bodied job applicants. There may be avenues of employment that are now closed to the worker because of the effects of their injury. These awards are generally made on a "global" basis to compensate for the "diminution of earning capacity" and rarely involve any mathematical precision.
This short film highlights the overall cost of these minor injuries within the manufacturing sector and showcases simple steps taken by some employers to reduce their injuries and costs.
- Last updated
- 26 October 2017