The Law Handbook 2024

Chapter 10.3: Transport accident injuries 941 who suffers from back pain. It is still necessary for a worker to satisfy other entitlement requirements, such as in section 40(3) of the WIRC Act. Industrial diseases In general, all diseases may be the subject of a workers compensation claim provided there is the necessary link with the employment. WorkSafe, a union or a solicitor has details of specific diseases and corresponding occupations or industries in which these diseases commonly arise (e.g. silicosis: any occupation involving silica dust). If a worker is suffering from one of the listed diseases and the worker has worked in the appropriate occupation or industry, then it is deemed that the disease has been contracted in that occupation or industry. To avoid paying compensation, the employer or WorkSafe must prove that the disease was not contracted in that occupation or industry. A worker who does not have one of the listed diseases or who has not worked in one of the appropriate occupations or industries must prove that there is a connection between the disease and the employment. The industrial disease provisions are set out in sections 50 and 51 of the WIRC Act. Journey and break provisions Section 46 of the WIRC Act specifies that an injury be covered for workers compensation purposes if it occurs while the worker is: • away from the workplace during any authorised recess, lunch break or smoko, if they have been at the place of employment on that day and do not subject themself to any abnormal risk of injury; • at a technical, training or trade school as part of the employment; • at any place to get treatment, or obtain a certificate, for a work-related injury or if being examined by WorkSafe or a self-insurer’s doctor; or • travelling for the purposes of the worker’s employment, except for travelling from the place of residence to one of the places referred to in the above paragraphs. An injury incurred during or after a substantial interruption or deviation is not covered by the WIRC Act. However, the break must have been a substantial interruption or deviation. For example, if a worker goes to a hotel for a few drinks it does not necessarily mean that any rights to compensation are lost because of the ‘deviation’ to the hotel. Misconduct If a worker is injured as a result of misconduct or disobedience of a regulation or without the employer’s instructions to do a particular task, there may still be an entitlement to workers compensation benefits, provided that ‘such act was done by the worker for the purposes of and in connectionwith the employer’s trade or business’ (s 46(2)(d)). However, if the worker is injured as a result of serious and wilful misconduct, there is no entitlement to workers compensation benefits unless the injury results in death or ‘severe injury’ (s 40(5),(6)). Management action Compensation is also not payable in respect of a stress-related illness or disorder of the mind where the stress wholly or predominantly resulted from ‘management action’ (or an expectation of such) taken on reasonable grounds and in a reasonable manner. Management action includes such matters as counselling, transfer or dismissal (s 40(1)). Other defences A worker driving a motor vehicle and injured in a transport accident may not be entitled to compensation or may have any weekly payments reduced if convicted of drug-driving or a drink- driving offence. However, those provisions do not apply where there is death or ‘serious injury’, or WorkSafe or self-insurer (or court) is satisfied that the presence of drugs or alcohol did not contribute in any way to the injury (ss 42–45). No compensation is payable where the injury was deliberately self-inflicted (s 40(4)). (See also ‘Journey and break provisions’, above.) Compensation benefits The WIRC Act contemplates that four types of payments will be made: 1 weekly payments for incapacity; 2 benefits in respect of death; 3 medical and like expenses; and 4 certain lump-sum compensation, including damages.