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Workers Compensation Lawyer WA – November 2013 – Newsletter

Our October newsletter touched on entitlements and obligations under the Workers Compensation and Injury Management Act 1981, this month we are going to have a brief look at injury ‘at work’ purely because of the very recent High Court Decision COMCARE v PVYW [2013] HCA 41 (summary can be found HERE) which involved an employee having sex in a motel room whilst on a work trip and an light fitting that was, importantly i think, pulled from the wall during the act.

This was the ongoing saga of a Federal employee who made a claim for compensation following a work trip where she had to stay overnight in a motel booked by the employer and was injured when a light fitting was pulled of the wall during sex with a partner. Initially the claim was accepted, however, after a bit of time a dispute arose between the employee and the insurer and it went to many hearings before ending up in the High Court.

The High Court thought that the test in Hatzimanolis v ANI Corp [1992] HCA 21 ( the leading HIgh Court decision in matters of this type where the employee was working in WA) had not been correctly understood and set about explaining what they really meant in particular with respect to an injury that occurs during an interval at work (think FIFO worker that has knocked off work and is back at camp). The High Court believes that in order for an injury which occurs in this intervening period (between knock off and back the next morning) to be capable of sustaining a workers compensation claim the injury must have occurred whilst the worker was engaged in an activity that was encouraged or induced by the employer.

There are many sites where the employer has set up gym equipment, swimming pools, sports fields and a range of other activities which have led to injuries on the job and successful workers compensation claims in the past (minus any gross misconduct issues). This decision will not have much of an impact on scenarios such as these because the inducement or encouragement can be seen as the erection of the facilities and the supply of equipment to undertake that particular activity. It is also clear that if you are asleep in your room on site (or in a motel on a work trip) and you roll over in bed and a light fitting falls on your head injuring you a claim for workers compensation can still be made.

The decision may have been decided differently if the couple had finished their goings on and had fallen asleep before the light fitting had fallen of its own accord but it would certainly be arguable that in that scenario the employee was only doing an activity encouraged by the employer (laying in bed).

We hope this is interesting and informative and ask that if there are any particular topics you would like to see covered in these newsletters please let us know by return email.

Any time you are unsure on what your rights are you can contact us on 08 6143 5200 to discuss it over the phone.

Anvil Legal

Interesting Case for November 2013

In the last week or so we have talked to a couple of prospective clients who weren’t sure if they could make a workers compensation claim following an injury in the workplace because they were ‘independent contractors’.
The term ‘independent contractor’ needs to be taken with a grain of salt when a worker cannot decide what work they do, can’t arrange for someone else to do it if they are not able, doesn’t provide the equipment necessary, has to wear the ‘head contractors’ uniform or doesn’t have to make good any stuff ups plus a range of other factors. In this case the worker was a taxi driver and although it is not directly related to workers compensation it will make anyone who reads it understand that there are many ‘independent contractors’ out there who do not understand that the relationship they are in is likely one of employee and employer.
The decision can be accessed here Alan Dick v James Voros [2013] FWC 6715

If you have been injured at work and need legal advice we can help