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Gaius Whiffin featured on 2GB discussing personal injury claims - 29 June 2021

Gaius Whiffin providing Q & A on the 2GB Deborah Knight Show discussing personal injury 29 June 2021


DK – Deborah Knight/GW –Gaius Whiffin /C1,2,3, etc – Callers


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Read the transcript below:

DK      And every Tuesday we do look at Legal Matters with Turner Freeman Lawyers and today the focus in personal injury, if you’ve got a question, a query, 131 873. Free legal advice and we’ve also got our $100 Westfield voucher to give away for the best call, maybe you’ve been injured while you’ve been out and about or on your way to work or you’ve been injured while doing your job, possibly even from home. 131 873 is the number to call. Gaius Whiffin is a partner at Turner Freeman, he’s on the line for us now. Gaius, good afternoon.

GW     Hell, how are you?

DK      Thank you for joining us. Now, workplaces, we know that there often places where personal injury claims do arise, is that the most common source of personal injury claims from the workplace?

GW     Yes it is, I mean you generally spend a fair bit of your time while you’re working so it generally is the majority of injuries that people suffer are at work.

DK      And is that changing by the fact that so many people are working from home prior to the lockdown of course, but even with the lockdown more and more people ae working from home, are we seeing an increase in work related claims from people who aren’t in the office but are actually in the home office?

GW     Not really, but I don’t think there’s been any decrease per say, I mean you’re covered by worker’s compensation laws whether you’re working in the office or at home and increasingly, this more and more obligations obviously on employers to make sure that people working at home are working in ergonomically safe environments and have the right equipment and tools and so forth to be able to attend to their duties safely. Things have changed quite a lot in the, over the last few years and especially I think significantly obviously in the last year, since the pandemic arose, I mean around 20 years ago I had a case for a lady that was working at home and tripped as she was taking her cup of coffee to her desk during her coffee break and the issue in that case was largely you know, when did she log on or when did she log off the computer and so forth, things aren’t as draconian as that these days, you’re generally covered for whatever you would be covered for if you’re in the workplace including breaks.

DK      And so should employers then be providing workers with things like ergonomic equipment and training on how to use the equipment as well, because we know with issues like RSI or back pain, or even with the home office set up if it’s not been done correctly, could a worker potentially have a claim based on that?

GW     Certainly. I mean the obligation is there to obviously provide the necessary  training, the obligation is there to ensure that the workplace is safe. Now working at home is a bit, obviously a lot more difficult for employers to deal with than obviously in the office but there’s still an obligation to make sure the working environment is safe.

DK      And you say that people are covered by worker’s compensation but are there ways that businesses can get out of being liable for injuries at home?

GW     Not if you’re basically doing your normal job, you’re doing your normal work duties at home, and it’s a situation where you’re either been allowed to do that or been forced to do that through a lockdown sort of procedure and your employer is aware of all of that, know that you’re basically going to be covered.

DK      That’s the physical side of things with injuries, how often do you see psychological injuries in the workplace?

GW     Again, that is probably an area that is increasing and increasing and I think probably due to more sort of awareness of the psychological nature of work injuries, so there are certainly in the last 10 years, 5 years or so there have been a lot more psychological injuries arise and that can also be working from home can put you into a position where you’re more susceptible to psychological injuries in certain cases, of course only certain cases, so…

DK      We are seeing a lot of workplaces as well bring in things like in-house counsellors or HR staff to help people with psychological injuries, is that increasing as a direct correlation to the number of cases increasing?

GW     Look, I think so, and I think it’s, I mean the New South Wales Worker’s Compensation Act makes it fairly clear what sort of psychological injuries are covered and its sort of long hours, stress, general stress in the workplace, things like failure to obtain benefits such as wage increases, at this time of year or promotions that generally isn’t covered if you suffer stress because of that, there needs to be some correlation between actual, the actual nature of the job in terms of as I said long hours or a stressful situation or indeed sort of harassment or bullying, and the psychological injury, you don’t get it just because you’re upset with your employer for doing something that’s reasonable.

DK      You may have a question for Gaius Whiffin from Turner Freeman Lawyers, 131 873 is the number to call, 0460 873 873 on the text. Oliver is on the line, hello Oliver.

Caller No 1     Oliver

C1       Hi there Deb.

DK      What was your question for Gaius today?

C1       So obviously ergonomics are pretty important in the office these days, if for example at work, you know our desk chair is not very ergonomic do we have any right to be able to request a more comfortable or ergonomic chair?

DK      Good question, Gaius?

GW     Well if comfortable or comfort in itself is not going to be particularly relevant, it’s whether it’s an ergonomic situation, which should have been looked into by your employer when they set up the workplace and generally, so again a lot depends upon the nature of the set up but if you’re being provided with a chair that you don’t think is particularly ergonomic or that you think is causing you back pain or something like that then the first step is to actually bring it to your employer’s notice and get it looked at and if they do not look at it they may get it looked at and they may say well look you know our ergonomist says that this actually the good chair for you and that might be right in itself, so first thing is to obviously get your employer to look at the situation and that applies to not just you know uncomfortable chairs but anything to do with the workplace set up that you might have.

DK      Yeah, and standing desks are a lot more common place these days too. I mean a lot of that equipment is more expensive though so I suppose for employers and bosses you need to work out whether or not you want to be potentially liable in there’s some sort of claim because if your worker has specifically requested it and they’ve got back issues, Gaius presumably you could be open to some claim down the track.

GW     Yeah look potentially, but if you’re providing a safe workplace then, I mean there’s no necessity for example to go out and purchase sitting/standing desks just because someone requests it, I mean at the end of the day it depends upon the situation and yes, look it might be reasonable if you know your employee has a particular injury or has a particular disability that requires some form of special equipment whether it be a sitting standing desk or something else then yes it probably is within your obligation to provide that but just because someone asks for it, as long as you’re providing the necessary safe equipment then there’s no obligation to go further than that.

DK      Alright we’ll take a quick break, back with more of your calls 131 873, we’re speaking with Gaius Whiffin with Tuesday Legal Matters, Turner Freeman Lawyers. All of our regulars are with you this week including Turner Freeman Lawyers, Tuesday Legal Matters with Gaius Whiffin, we’re taking personal injury. Just a question on the email here, Gaius from a small business owner, they say my staff are working from home, one of them has claimed to me that they’ve suffered an injury while working, but I’m not convinced they were actually working at the time and they’re asking if I can prove they were actually injured during a personal task such as exercise, can I get out of paying workers comp?

GW     It depends, there has been a case for example where someone was jogging, working from home and they took their normal break, this was what they did when they were working too, so if they were working in the office during their break they’d exercise, and the person was exercising at home, went for a jog around the block and tripped on the footpath and was covered for worker’s compensation, so again it’s very difficult to say without knowing a bit more about what happened and there’s often a very fine line in these cases between when your working day starts and when it doesn’t start. So if for example someone is at home working, they go out to do some shopping but it’s their sort of weekly shopping that takes 2 hours and you know is a big impost into the working day then that might be something which may not be covered, but if all they’re doing is go up to local shop to get a sandwich and a cup of coffee.

DK      Which is what they would do if they were in the office.

GW     Exactly, they’re going to be covered.

DK      Alright, hopefully that will of help. Jim’s on the line with a question for you, g’day Jim.

Caller No 2     Jim

C2       G’day how are you?

DK      I’m well thank you.

C2       That’s nice. My question is this, I got injured at work and between the worker’s compensation, cause my employer changed worker’s compensation companies between the two injuries, they were fighting as to who was going to pay for the compensation to the injury. In the meantime I had my own personal income protection plan, so I opted to go down that path, my question is, worker’s compensation payments are non-taxable but income protection periodic payments are taxable, I was just wondering if there’ a way that we can find out whether that’s true or not.

GW     Well worker’s compensation payments are in fact taxable. So if you’re paid, if you’re off work for you know 4 weeks, 5 weeks and you’re paid compensation payments they are taxable in the same way that your wage would be taxable. Where worker’s compensation payments aren’t taxable is if you’ve got a lump sum claim, so if you have a significant injury and you bring what’s called a common law claim for negligence because of the injury at work and you settle that claim, then yes that’s not taxable and threes a reason for that because when you’re calculating the economic loss that’s suffered you only use net figures, so that’s why they’re not taxable in those cases.

DK      Alright Jim, stay on the line and we’ll send you out the $100 Westfield voucher because I think that’s a pretty timely question that many would be interested in, $100 coming your way, Jim from Westfield for the best call which is what we give away regularly every Tuesday as part of our legal matters segment with Turner Freeman Lawyers. Gaius thanks so much for joining us.

GW     That’s okay, all the best, Deb.

DK      Gaius Whiffin there, who is a partner with Turner Freeman Lawyers and they provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability services, employment law, wills and estates and property law and if you want to get in touch with any of the lawyers, any of the team at Turner Freeman, check out their website, or give them a call, the number 13 43 63.


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