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Richard Dababneh discussing accidents at work

Richard Dababneh providing Q & A on the 2GB Chris Smith Afternoon Show discussing “workers compensation – accidents before or after work or during breaks and the role of personal responsibility

Tuesday, 14 May 2019 

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CS– Chris Smith / Richard Dababneh–   C1,2,3, etc – Callers 

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CS       Sometime ago I told you about a really interesting workers compensation case in involving a McDonalds’ worker in Brisbane who broke her leg after falling from a ladder just before her shift started. Ms Mandep Sikaria would always climb onto the roof of the Richlands McDonalds to have a cigarette but on 1 November 2016 she fell off the ladder shattering her ankle and fracturing her leg. Now her subsequent workers compensation claim was rejected as the accident occurred before her shift started but following numerous appeals she has won the right to compensation but it raises questions about the way workers compensation laws define work and the role of personal responsibility. I have got a $100 Westfield voucher to give away to one of our callers right now so if you have had a work place accident and you’ve got questions to ask about that or you’ve got compensation or maybe a case that someone you know or love is involved. 131873 is the telephone number. Jump in, the earlier the better, 131873 and a $100 Westfield voucher to one of our callers. Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, employment law, wills and estates and property law. They have NSW offices in Sydney, Parramatta, Campbelltown, Penrith, Newcastle and Wollongong. Richard Dababneh is an accredited specialist in personal injury law and he is also a partner at Turner Freeman’s Parramatta office and he joins me right now. G’day there Richard.

RD      G’day or good afternoon.

CS       Good to have you on. Now the accident to this woman occurred 10 minutes before she was scheduled to start. When she originally made a claim to WorkCover she was rejected because the accident occurred out of work hours. How do workers compensation laws define work though? Does it start and finish strictly when your contract states or can it include being on the premises or even off the premises. How does it define work?

RD      Yeah I think being on the premises is the answer to that, that’s the rule in NSW anyway but in this case in particular, there was a  requirement that she in fact start 10 minutes before her shift starts, so be there before the shift actually starts so on that basis that first appeal was overturned, and then they raised the obvious which is what is she doing on the roof and the answer to that which I thought was very interesting, is that it was actually common, you know she was up there quite a bit smoking. She had been on there with managers, would watch the fireworks from there.

CS       So the managers came on the roof with her to smoke as well did they or they just went on the roof?

RD      Well it looked like it was a common practice for them to climb up there and spend some of their recesses or their breaks.

CS       But having said that, McDonalds wouldn’t have officially said the roof was a place that people can smoke?

RD      Certainly not, I wouldn’t have thought it was accepted but it became a common practice for that McDonalds. I suspect it has probably changed now that all of this has occurred. I think what it raises though in terms of NSW and workers compensation generally, is the entitlements for workers to bring claims for injuries that occur on recesses. Recesses being the traditional one that is your lunch break or your smokos, they are covered.

CS       If it had happened an hour before she started the shift and you already identified that there was a ten minute grace period where she was required to be at the premises but if it happened one hour before, does she earn compensation I wonder Richard?

RD      Yeah well, every case falls under its own facts I suppose and a case like this, the fact that she is at the store a little bit earlier, I don’t think would preclude someone in this state from bringing that claim.

CS       The woman claims days after her accident the store put up a sign near the ladder saying it could only be accessed by authorised personnel.  She said this wasn’t there before the fall. What role would this have played in the court’s decision to award the woman compensation?

RD      A little too late I think in that situation. If it was on there a little bit earlier obviously before she had the accident.

CS       It’s a bit cheeky of them to do it really or were they preventing a second case having to be handled in the courts.

RD      Yeah I think so, I think that’s what it would be.

CS       So what’s the lesson for small business if for instance there is a sneaky place where people go to smoke and it is close to roads or in a dangerous location. There has to be a lesson there for employers.

RD      Absolutely. An employer has an obligation to protect employees from their own, in this case stupidity really. It is far and wide reaching, it is an obligation that they cannot delegate to another entity or organisation, they have to protect their employees and in this situation and in every situation really.

CS       A lot of this has to be common sense though. For example climbing the ladder onto the roof of the McDonalds store carries inherent dangers. When I first read about the story I thought hang on, no wonder she is getting knocked back through her various appeals. She shouldn’t be on the roof, it’s a dangerous place to be.

RD      Absolutely. The funny thing is, in NSW there is a Section in the Act which actually tries to preclude these types of things, so if there is an injury which occurs during a recess, there is a preclusion where the worker has subjected themselves to an abnormal risk of injury, are they actually exposing themselves to an abnormal risk of injury by climbing onto the roof. There is a question mark over that because climbing onto the roof itself isn’t a particularly injurious event, it’s the fact that she stacked it that’s caused injury. So you know there is a question mark, these types of cases are always disputed; there are always insurance companies who question these things.

CS       I can only imagine if you are going to go from appeal to appeal to appeal, that it’s cost a fair amount of money to the lawyers, they’ve made a bit out of it. I want to go to Sarah’s call, Sarah has called through on 131873. Go ahead Sarah, Richard is listening.

C1       Oh hi there. I am just interested to hear this case. I think they should have a clause called the common sense law clause. To me this is common sense that you don’t have a practice and if other people choose to do it and you follow that….if your manager jumps off the cliff do you jump as well?

CS       Superbly stated Sarah.

RD      Certainly, if there was a court that was for common sense then this lady would not receive her compensation.

CS       Maybe it is the Judges in the courts Sarah that need the lesson in common sense maybe.

C1       I think an overhaul of our system may need to occur because this shouldn’t be happening.

CS       That is the most sensible thing I’ve heard people say in this area. Sarah I have a $100 Westfield voucher for you. You’re the best caller, thank you.

C1       Oh thank you.

CS       Stay right there, don’t go anywhere I’ll put you through to Hansell and we will get the $100 Westfield voucher to you. It’s right, a little bit of common sense, some of these cases you read the headline and you think no, this is not the place to go and what about the amount of compensation for this woman. How do you calculate the amount of compensation? How does the compensation work?

RD      Well in this case, she was actually off work for a number of years after this incident so she would have been paid a wage, weekly compensation for some time.

CS       So she hasn’t returned to work since the accident in 2016 saying she is only just been able to start driving again, um, two and a half years since she broke her leg and she couldn’t have gone back to work.

RD      Well that’s you know, I don’t know the intricacy of it but certainly someone is injured and they are certified by their doctors as unable to work, then they are entitled to weekly compensation. It all comes down to the medical evidence in each case and beyond that her medical expenses would have been covered.

CS       What sort of medical evidence does she need to provide the insurer in order to receive the compensation in this case?

RD      In a case like this, you would need regular medical certificates, they are called certificates of capacity that actually outline what you are able to do or not do. I suppose, and subject to continuing to provide them, the insurer has an obligation to pay an amount of weekly compensation and that amount varies depending on how long the weekly compensation is paid.

CS       If a court says, I see in your favour, can the insurer in any circumstance still refuse to pay compensation?

RD      Certainly, it depends on the actual judgment but you would expect that if it is a final judgment in a court case then no, the answer is that is final and whatever the outcome of that is binding.

CS       Does the court come up with the figure does it?

RD      The court would, in a damages case the court would assess the extent of damage.

CS       And what is the timeframe? When someone is handed a result or a decision in court, hey you’ve won the case well done, how long does it take then to calculate compensation? Does it take another 6 months?

RD      Oh no, 4-6 weeks, 6-8 weeks depending on Centrelink and Medicare, they are required to get involved and give clearances in each case and they sometimes take a little bit longer given those departments how busy they are. Somewhere between 4 and 8 weeks.

CS       Ok so if people are in a situation where they might want to think about claiming compensation and they are not sure what to do, is there a time limit of expiration where they cannot take their case up?

RD      There is, there are limitation periods that apply in personal injury cases all over the country. There are ways around certain time limitations and ignorance is an excuse obviously used in most cases where someone was not aware they had a right, it’s difficult for the time to start ticking.

CS       Ok. If you want to get in touch with Richard or any of the other lawyers and experts at Turner Freeman you can do so.  Turnerfreeman.com.au is the website but the number is 134363. Richard thank you very much for your time this afternoon.

RD      Thank you.

CS       Richard Dababneh from Turner Freeman.

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