Event Organisers and dangerous recreational activities

Headshot of Libby Campbell - Solicitor at Everingham Solomons Tamworth

On 6 April 2022 the High Court handed down their decision, overturning the previous Supreme Court and Court of Appeal decision, of Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd.

Ms Tapp, who was 19 at the time, was competing in a campdrafting competition near Scone. There had already been two days of competition and Ms Tapp was competing at approximately 7pm on the second day. In the hour prior to Ms Tapp’s run, there had been four contestants fall and they had been described as “bad falls”. There were also two warnings provided by a fellow experienced contestant that the campdraft needed to be stopped as “the ground was getting a bit slippery”. The Committee did pause the event on two occasions and conferred with each other concluding that the riders would need to ride to the conditions and that the competition should proceed noting it would be unfair to stop as other competitors had already ridden on the current surface. It was accepted that the ground prior to Ms Tapp’s ride was identified “as being dangerous”. Ms Tapp then competed and was in the main arena when the front feet of the horse she was riding slipped on the ground of the arena causing the horse and Ms Tapp to fall, resulting in a serious spinal injury to Ms Tapp.

The High Court held by a majority 3/2, that the association had breached its duty, the breach caused the injury, and the injuries were not the result of an obvious risk of a dangerous recreational activity. Ms Tapp did not know about the earlier falls and had not inspected the track and therefore the risk of injury was not obvious to her. Ms Tapp’s injuries were not caused by her participation in a dangerous recreational activity, but rather it was caused by the dangerous surface of the arena, which was not obvious to a reasonable person. For all your legal needs contact Everingham Solomons because Helping You is Our Business.

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The Test for Psychological Injuries in Workers Compensation Claims

Headshot of Libby Campbell - Solicitor at Everingham Solomons TamworthPsychological injuries as a result of work are significant workers compensation claims, however there is a potential defence for employers to prevent psychological claims.

The Workers Compensation Act 1987 states at section 11A, “No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

There are three main elements of the test. Firstly, that the injury was wholly and predominantly caused by work. Therefore, if there were other extenuating circumstances, which may have been the cause of the injury, then the injured worker is not successful with passing this test.

Secondly, whether the actions fall under a transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal.

Thirdly, what is considered reasonable action by the employer will depend on the facts of the case. For example in the case of Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255 it was noted that when considering what is reasonable, the employer is not required to consider everything; they are only required to consider the facts that are known to the employer at the time or could be known with reasonable diligent inquiries.

In the case of Green v Secretary, Department of Regional NSW [2021] NSWPIC 37, Member Snell reviewed each element of the test and while she found the first two elements were satisfied, the third element of reasonableness was not. The employer failed to reassure the worker’s concerns in relation to a transfer and therefore the employer’s actions were not reasonable.

If you have suffered a psychological injury as a result of work and the insurer has denied the claim based on section 11A, or you are an employer with an employee that has suffered a psychological injury, please contact our office to speak with one of our IRO approved solicitors because Helping You is Our Business.

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Workers Compensation payments and COVID-19 lockdown – are they being calculated correctly?

Headshot of Libby Campbell - Solicitor at Everingham Solomons TamworthIf you are injured at work and require workers compensation, one of the entitlements available to you is weekly payments for the period you are incapacitated to work. Weekly payments are calculated based on your Pre-Injury Average Weekly Earnings (PIAWE) and are the average of your gross earnings from any employment performed for 52 weeks immediately before the date of injury. Therefore if you work in two jobs, immediately before your injury, earnings from both employers are included in your PIAWE.

Recently, as a result of COVID-19 and the subsequent lockdowns that have been required, the question is then raised if you were not receiving income for the total 52 week period immediately prior to your injury, will your average earnings still be calculated over a 52 week period?

The NSW government introduced the Workers Compensation Amendment (COVID-19 Weekly Payment Compensation) Regulation 2020 and specifically Schedule 1, Clause 8EA allows for an adjustment to occur in the earning period if there was a change to the injured worker’s employment arrangements as a direct result of the impact of the COVID-19 pandemic.  Specifically the change had to occur between the periods of 23 March 2020 to 27 September 2020, and therefore those affected weeks would not be included in the PIAWE calculation.

This was a welcomed amendment for injured workers, otherwise if you were required to have the PIAWE calculated over the 52 week period you would potentially receive a substantially less PIAWE rate and therefore your weekly payments would be paid at a lesser rate from the commencement of your claim.

If your PIAWE calculation covered the period between 23 March 2020 to 27 September 2020 and your earnings were materially affected due to COVID-19, please contact our office, because it may be the case that your PIAWE is incorrect and therefore your weekly payments are potentially less than what they should be. We have two IRO approved solicitors that can assist with reviewing your PIAWE so please get in contact with our office because Helping You is Our Business.

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Have your workers compensation treatment expenses been paid?

Under NSW Workers Compensation Law if you require treatment as a result of an injury the workers compensation insurer is required to pay for the treatment if it is considered reasonably necessary. However, there is a process to obtaining pre-approval and payment for expenses related to medical treatment as a result of your injury.

To commence with treatment you must seek pre-approval from the workers compensation insurer. Any request for reasonably necessary treatment should be approved by the insurer within 21 days of that request being made pursuant to Section 60 of the Workers Compensation Act 1987.

If the workers compensation insurer has exceeded this time frame we can intervene on your behalf to obtain a response from the insurer.

If after receiving treatment, the workers compensation insurer has not forwarded payment to your treating doctor or specialist, there are benchmark time periods that apply to the insurer. The workers compensation insurer has 10 working days after receiving a valid tax invoice from your treatment provider to pay the tax invoice. If the payment is not forthcoming, we can assist with making sure your treatment provider is paid promptly and treatment can continue.

If you or someone you know is having difficulty either having treatment approved by the workers compensation insurer or having medical expenses paid by the insurer then please contact our office because Helping You is Our Business.

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The New Personal Injury Commission

In 2020 the New South Wales Parliament passed the Personal Injury Commission Act 2020
which was legislation to establish a Personal Injury Commission. The idea behind the Personal Injury Commission is that it will combine the Dispute Resolution Systems of the Workers Compensation and CTP Insurance Schemes into one Tribunal. The commencement date of the Personal Injury Commission is 1 March 2021.

The New South Wales Governments hope is that the new Personal Injury Commission will make it easier and more cost effective for injured people to claim in their respective jurisdictions.

The Personal Injury Commission will adapt a digital platform and it is expected that regional cases will now proceed on par with city matters, avoiding unnecessary delay.

Importantly, there will be no changes to the entitlements to injured workers.

If you have been injured at work or as a result of a motor vehicle accident please contact our office because Helping You is Our Business.

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Worker with highest needs – when does the highest rate of weekly payments start?

Under Workers Compensation Legislation, if a worker is assessed at 31% Whole Person Impairment or greater they are considered a “worker with highest needs”. This classification provides them with an entitlement to receive weekly payments at the Pre Injury Average Weekly Earnings rate, in addition to any potential income they may be earning from employment, provided they still have some level of incapacity. Therefore a worker considered in this class, can potentially be receiving significantly more money per week post injury than what they were earning prior to the injury.

However, the question has been raised by the recent case of Meat Carter Pty Ltd v Melides [2020] NSWCA 307, when does the highest rate of weekly payments start.

In this case the worker was first injured on 14 August 2014. However he wasn’t determined to be a “worker with highest needs” until 9 June 2017, following a Medical Assessment Certificate that assessed him at 60% Whole Person Impairment. The worker was then paid at the special Section 38A rate from 9 June 2017 onwards. He made a claim to the insurer, from the date of injury of 14 August 2014 up to 8 June 2017, a period of just less than 3 years, seeking for the special Section 38A rate to be paid.

The matter went on appeal to the New South Wales Court of Appeal but it was held the worker had not satisfied the definition of “worker with highest needs” until 9 June 2017, and therefore weekly payments were only payable from that date onwards and not from the date of injury.

If you have a workers compensation claim and have any questions in relation to what you are entitled to please contact Everingham Solomons because, Helping You is Our Business.

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Are you in Year 12 at Tamworth, Quirindi, Gunnedah or Manilla? Are you wanting to study Law next year at University? Great news – applications are now open for the Sir Adrian Solomons Memorial Law Bursary

Everingham Solomons are pleased to announce that once again a Tamworth, Quirindi, Gunnedah or Manilla Year 12 student wishing to undertake university study in Law will have a valuable opportunity to receive the benefits of our Law Bursary.

The Sir Adrian Solomons Memorial Law Bursary has long provided financial assistance for the successful applicant during their first year of university as well as an opportunity to gain valuable paid work experience in our offices periodically throughout the duration of their studies.

Everingham Solomons will also be making a cash donation to the school of the successful applicant to assist in maintaining the excellent educational standards that our region can offer.

Local High Schools have been contacted and advised of the details. Interested students should liaise with the Principal or Careers Advisor of their school, who will assist them in making a formal application for this Bursary.

We emphasise that the selection process does not depend solely on academic merit. We appreciate that students come from a variety of backgrounds and accordingly the selection process concentrates on the attributes of the student as a whole, rather than solely academic achievement.

The Bursary has gained widespread interest since its inception and continues to provide a valuable opportunity for current Year 12 students wishing to pursue a legal career. The Bursary is also open to students currently undertaking a gap year who will be commencing university study in 2021.

Everingham Solomons view the Bursary as a continuing commitment to young people in the communities of Tamworth, Quirindi, Manilla and Gunnedah and we encourage interested students to apply. Applications will be accepted until 8 January 2021.

If you would like more information on the Law Bursary, please contact Everingham Solomons because, Helping You is Our Business.

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Does every employee get 10 days personal leave a year? The High Court has decided…

On 13 August 2020 the High Court handed down their decision in the appeal of the Full Federal Court’s decision in the Mondelez case. The previous decision stated that based on the National Employment Standards all employees, regardless of whether they were part time or full time employees, were entitled to 10 days personal leave each year.

The High Court has now overturned the decision in the case Mondelez Australia Pty Ltd v AMWU & Ors [2020] HCA 29. The High Court established that the 10 days of personal leave referred to in the National Employment Standards, is to be known as 10 ‘notional days’ of leave. The duration of a ‘day’ is to be determined by one-tenth of the hours of the equivalent of an employee’s ordinary hours of work in a two-week (fortnightly) period. Alternatively it is 1/26 of the employee’s ordinary hours of work in a year.

For example, if a full time employee works the standard 38 hour week (7.6 hours x 5 days) and therefore 76 hours in a fortnight, then the notional day will be 7.6 hours.

If a part time employee works 10 hours a week and therefore 20 hours a fortnight, the notional day will be a 2 hour day, as opposed to 7.6 hours. Meaning over the course of the year the part time employee would be entitled to 10 x 2-hour notional days.

In effect, each notional day is calculated on a pro rata basis depending on how many hours the employee works.
If you have an employment law issue that you require clarification and advice on please contact our office because Helping You is Our Business.

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A gap in weekly payments of workers compensation

In 2012 the NSW Government made significant changes to the workers compensation system. For injured workers who made workers compensation claims prior to 2012 their weekly payments ceased on 25 December 2017, if they had not been assessed at greater than 20% whole person impaired. If injured workers later went on to be assessed at greater than 20% whole person impaired the workers compensation insurer was not reimbursing payments to the injured worker for the period they went without receiving weekly payments of compensation.
However, new case law decided on 17 June 2020 has now overturned any misconception that weekly payments were not payable for the period that the weekly payments stopped up until the assessment of greater than 20% whole person impairment. The two cases are Hochbaum v RSM Building Services Pty Ltd (Hochbaum); Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113 (Whitton).
Previously it was thought that section 39(3) Workers Compensation Act 1987 provided that an assessment needed to be completed by an Approved Medical Specialist before the weekly payments would be payable and therefore the assessment did not act retrospectively. Following the decision in Hochbaum and Whitton the court has made it clear that subsection 3 only provides a mechanism for assessment and not a time frame. Additionally section 39(2) simply states the only threshold required for weekly payments to continue is for the worker to be assessed at greater than 20% whole person impairment and it does not matter when that assessment occurs.
If your weekly payments ceased on 25 December 2017 and there was a delay in receiving an assessment of greater than 20% whole person impairment, and your weekly payments were temporarily not paid, please contact our office because you may be entitled to reimbursement. We have two WIRO approved solicitors to assist you with your workers compensation claims because Helping You is Our Business.

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New employee? New information and the latest law on personal/carer’s leave

As every new employee commences work their employer must provide them with certain documentation and the documentation from the Fair Work Commission has recently been updated. The Fair Work Commission publishes the Fair Work Information Statement, which is available online. This document must be provided to every new employee in Australia before they commence work or as soon as possible after they commence work.

For employees this document provides information about Australia’s employment laws and what governs them. It provides the minimum entitlements to workers known as the National Employment Standards or NES, and also lists the minimum wage for adult permanent and casual employees.

On 19 August 2019, the Full Federal Court handed down a decision in relation to the method of accruing and taking paid personal leave under the NES. This case is known as the Mondelez decision and confirmed that full time and part time employees are entitled to the same amount of paid personal/carer’s leave for each year of employment, being 10 days per year. The case is currently on appeal to the High Court but at the present time the Mondelez decision is law and the Fair Work Information Statement reflects the current law.

The Information Statement also details the requirements for ending employment, what notice period is required and what should be included in your final pay. If the employee believes the termination was unfair they have 21 days to file a claim in the Fair Work Commission.

For Employers, it is important you record when and how the Fair Work Information Statement was provided to all employees. If you require any assistance with employment law matters please contact our office because Helping You is Our Business.

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