As an employer, you have a duty of care to staff to ensure they are safe,
healthy, and supported when working for your company.
However, as we all know, accidents can happen. Whether it’s on the job itself, on the
road travelling to and from client meetings, or even at your fly-in, fly-out
accommodation camp.
This is why it’s crucial your business is prepared for any potential incidents – no
matter what industry you’re in - and has the necessary workers' compensation
insurances, which are not only a legal obligation for anyone considered a ‘worker’ in
your organisation but will reduce the impact on your business if a work-related injury
or illness claim arises.
At Goldfields Security Services, protecting businesses is in our DNA, which is why
we felt strongly about writing a blog on this topic to provide a brief introduction into
workers’ compensation in WA and education on the importance of taking a proactive
approach to safety on site to reduce risk.
WA’s ‘no-fault’ principle
First up, there’s an important part of the Workers' Compensation and Injury
Management Act 1981 (the Act) we must address: the ‘no-fault’ principle.
What does this mean? Well according to our friends over at WorkCover WA, this
means an employee does not have to establish that their employer was at fault or
negligent to make a workers’ compensation claim.
“You are entitled to compensation if you are a worker, suffer an injury or develop a
disease at work and require medical treatment or time off work as a result,”
“The legal definition of a worker includes full-time, part-time, casual, seasonal, piece
and commission workers. Working directors, contractors and sub-contractors may
also be defined as workers depending on their working arrangements.”
This means if an incident happens on site that aggravates a pre-existing condition,
employees are still entitled to make a claim which could involve financial payment to
manage a worker’s rehabilitation, medical expenses, weekly payments for any loss
of earnings, and potential lump sum payments if the worker has a permanent injury.
To clarify this further, we spoke with an insurance company about this topic, who
requested to remain anonymous.
“The workers comp system is a ‘no fault’ system. The insurer does not take into
consideration any ‘fault’ of the employee . So no matter if they follow procedure or
not, the employee is still entitled to make a claim, and the insurer is obliged to accept
that claim,” the insurance company stated.
“Pre-existing injuries are still a workers comp claim. The only consideration here
being the insurer is entitled to write down the medical costs of a claim by the
percentage that medical professionals deem to be ‘pre-existing’ versus what was
sustained at the workplace.
“For example, if a worker has an existing back injury, then mildly injures their back at work – the insurer may not necessarily be liable for all costs of medical treatment. This has to be adjudicated and supported by medical professionals which can become difficult in itself.
“In regard to the wages component of the claim, the worker is still entitled to full reimbursement of lost wages, irrespective of the portion of injury that is deemed to be pre-existing.''
However, there are some potential exceptions to the rule, according to CCIWA.
The Chamber of Commerce and Industry WA article ‘Worker’s Compensation – What is actually claimable?’ says a decision on whether an injury is compensable comes down to either insurers or the court, based on information provided by an employer.
“The decision comes down to whether the duties being undertaken at the time of injury were part of their usual duties in their job description,” CCIWA states.
“If a worker is not connected with WA or if they're working interstate or internationally, there is cause potentially for that claim to be denied. There is also…serious and willful misconduct by a worker - that can relate to events such as the voluntary consumption of alcohol or drugs, both of which have the potential to alter or impair the function of their facilities or the ability to carry out work.
“Or there is failure without reasonable excuse, of which the proof is on the worker to use protective equipment, clothing or accessories provided by his worker or the workers use, or any other serious and willful misconduct.”
Our friends over at Guardsafe put us in contact with Steadfast Workplace Risk who specialise in worker’s compensation, and shared some insights into the exceptions into the no fault principle.
“Workers Compensation is a no-fault system hence a claim will more than likely be accepted (if it meets the normal criteria i.e main contributing factor),” Steadfast Workplace Risk stated.
“Obviously we assist clients to reasonably excuse or decline a claim, but this is on a case-by-case basis. If the matter goes legal, there can be some contributory negligence, however this does depend on the circumstance.”
On the topic of ‘false claims’ Steadfast Workplace Risk said it is very difficult to prove a false claim as you need to demonstrate that it either didn’t happen in the workplace with factual evidence, or the mechanism of injury could not have been possible in their duties.
“This can be very hard to do and we work with medical evidence to prove this is the case and in turn means that the employer would also need to have a lot of details around the analysis of the job, which we can assist with, as allied assessments need to take place prior to any injury,” Steadfast Workplace Risk stated.
It added, pre-employment medicals are a good start for employers when they bring new people into the business.
“If you can identify their condition before they start and it is detrimental to the role you are recruiting and putting the potential worker in a position where they may be injured, then at least you are minimising your business risk,” they stated.
WA workers’ compensation claims in focus
To put this all into perspective (as we like our numbers here at Goldfields Security Services), the most recent data published by Safe Work Australia for 2020-2021 year said there were 130,195 serious worker compensation claims nationally. That’s a sizeable number there!
Of these claims, 37% were related to body stressing, 23% related to falls, trips and slips, and 16% to being hit by moving objects.
Mental health claims were also on the rise, according to Steadfast Workplace Risk.
“Mental health related claims and the impact of these claims are increasing. The way they are managed from both a proactive and early intervention perspective is crucial.
“Wages are the largest impact on premiums, not to mention the direct and indirect impact on a business due to downtime, training replacement staff or paying overtime to others to cover these roles.
“There needs to a robust system in place from injury (including the expediting reporting process) through to medical management and return to work options available to the injured workers. Premium increases themselves due to increased claims costs.”
Our confidential insurance contact also said current issues facing workers’ compensation claims included access to specialist medical providers.
“The delays between sustaining an injury and being able to get expert medical opinion can be a friction point in a claim and slow the rehab of a worker down,” they said.
“We don’t see any changes to specialist numbers/wait times so this is likely to continue. It is important the insurer/employee/rehab provider arrange for specialist reviews/appointments as early as possible in the claim process to mitigate rehab and diagnosis delays.
The insurance company also said increase in average wage is another factor in increased claims costs.
“As wages rise, so too do claims costs which then in turn affect insurance premiums in years to follow. There is nothing an employer can do about the wages cost issue though.”
However, they said all of this was just scratching the surface into workers compensation claims and encouraged employers to familiarise themselves with the Act (which is more than 200 pages long exploring the ins and outs of claims, injuries, rehabilitation and entitlements).
Proactive approach to safety
So, what can businesses do to protect themselves from worker's compensation claims being made in the first place?
The answer is taking a proactive approach to safety and security, ensuring the correct policies and procedures are in place and adhered to, being careful with whom you employ, ensuring you have workers' compensation insurance (a legal requirement), and staying up to date with the relevant legislation.
First and foremost, it's important to establish a culture of safety within your business.
This means leading by example and making sure all your employees are aware of the potential risks and hazards involved in their work and are trained in how to mitigate them.
It also means providing staff with the appropriate personal protective equipment (PPE) and ensuring they use it properly.
Our insurance company contact echoed these views.
“The usual good work practice's should be raised,” they stated.
“Adequate training, use of PPE, adequate supervision, safety culture and commitment to it etc. All an employer can do is provide the safest workplace possible, with reminders to staff about the importance of following safe work practices (toolbox talks etc).”
In the hiring process, we also recommend thoroughly vetting job candidates to ensure they are physically and mentally capable of performing the job safely. This may involve conducting background checks, verifying their references, and even administering pre-employment physicals or drug tests, depending on the nature of the work.
In addition, all companies should stay up-to-date with the relevant legislation and regulations regarding worker's compensation insurance, to ensure that you are compliant with all legal requirements.
This may involve working with an insurance broker or specialist like us who can help you navigate the complex world of insurance and risk management, and knowing what the rules are i.e if a workers compensation claim has been made, as an employer you have five days to present this to your insurer.
Guardsafe Insurance Brokers company director Kylie Howlett said if you use Sub-Contractors or Labour Hire, a company also needs to ensure their contractors have their own liability insurance and personal accident/workers compensation insurance and for companies to request and obtain a copy of their insurance policies.
“You will also need to ensure your Liability policy includes Personal Injury to Sub-Contractors/labour hire as many policies exclude this,” Kylie Howlett said.
“Whilst your subbies/labour hire have their own Workers Compensation/Personal Accident Insurance in place, you could still be found liable for their injury where they are operating under your direction and control.
“We often see Workers Compensation Insurers seeking recovery off the Principal Contractor or the sub-contractor brings a lawsuit against you directly.”
Kylie added there are a number of measures business can take to best protect themselves from claims and litigation including stating your responsibilities in a contract and/or in Terms and Conditions, and ensuring there are adequate security cameras on site so footage can be accessed in the event of an incident to confirm what actually happened.
Kylie also said it was important for businesses to improve incident reporting, ensure staff are trained on incidents, and to record training of staff and ensure it is up to date.
Finally, it's important to have a plan in place for what to do in the event of a worker's compensation claim. This may involve designating a specific point person or team to manage the claim, working closely with the injured employee to ensure that they receive the care and support they need to recover as quickly as possible, and keeping detailed records of all communications and interactions related to the claim.
Ultimately, the key to protecting your business from worker's compensation claims is to be proactive and vigilant, assessing and mitigating risk across the entire value chain.
By taking these steps, you can help ensure the safety and wellbeing of your employees, while also safeguarding your business from potentially devastating financial and reputational losses.
Book a risk assessment for your company
How can we help? If you’d like some further guidance here or would like to book us in to visit your site and conduct a thorough risk assessment, we’d love to hear from you. Call us on 0404 449 326 or email info@goldfieldssecurityservices.com.au.
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