Risk of death is more than a ‘blemish’

One of the purposes of the Queensland workers’ compensation legislation is to support workers who have been injured at work to get back on their feet, regardless of the cause of their injury. The exception to this is in relation to psychiatric injuries in which case support can be denied in the event an injury is caused by “reasonable management action.” Employers and insurers have long taken advantage of this ‘exclusion,’ leaving vulnerable workers without recourse. Industrial Commissioner Black has acted to limit this exception in the matter of McPherson v Workers’ Compensation Regulator [2018] QIRC 010.

Mr McPherson had been employed by BHP Billiton Mitsubishi Alliance at the Peak Downs Mine as a diesel fitter for 21 years. On 22 August 2015, as a result of events at work, he suffered an adjustment disorder and generalised anxiety, causing him to be unable to work for 14 months. Mr McPherson brought an application for compensation with BHP (self-insurer). It was agreed that Mr McPherson was a worker, that he had suffered an injury and that his employment was the major significant contributing factor to that injury. The self-insurer, however, rejected the application on the basis that the injury was a result of “reasonable management action.”

On the evidence of Mr McPherson, which was supported by a number of witnesses and ultimately preferred by the Commissioner, the morning of 22 August 2015 proceeded as follows:

6:30 am – Pre-start briefing including job assignment. Mr McPherson and Mr Marsh are assigned to work on Dozer 401.

7:00 am – Workers collect tools and material required for assigned job. Mr Marsh is re-assigned to perform field work.

7:15 am – Commence work.

7:30 am – Mr McPherson identified that Dozer 401 needed to be moved into the field and requested an operator to do same.

7:40 am – The operator attends and conducts a pre-start routine on Dozer 401.

7:50 am – The operator discovers that Mr Marsh’s isolation lock is fitted to Dozer 401.

7:55 am – Mr McPherson enters the office with the intention of calling to Mr Marsh on the radio to return to Dozer 401 to remove his isolation lock. Mr McPherson is intercepted by his supervisor, Mr Barron, who instructs Mr McPherson to remove Mr Marsh’s isolation lock himself.

8:00 am – Mr McPherson returns to Dozer 401 and removes Mr Marsh’s isolation lock as instructed.

8:15 am – Mr McPherson presented at the Medical Centre

The issue before the Commission was whether the instruction by Mr Barron to Mr McPherson to remove Mr Marsh’s isolation lock was a mere “blemish” or constituted “unreasonable management action.”

The isolation lock rule is considered to be a “life saving” rule in the hierarchy of safety rules at the mine. Each employee who is working on a piece of equipment must first fit their individual isolation lock to the equipment. This prevents the equipment from becoming operational. Only the individual employee whom owns a lock may remove it. This ensures that equipment is not started whilst employees are working on or in the equipment.

There is a procedure for removing the isolation lock of an employee who is unable to do so themselves. This involves firstly contacting the owner of the isolation lock. Only where it has been confirmed that the employee is unable to return to the site and remove the lock themselves, may a Superintendent authorise a supervisor and competent person to remove the lock.

The evidence revealed that the isolation lock rule is not always fully complied with, although the part that was often skipped was the obtaining of authority from a Superintendent. The evidence also showed that it was a rare event for an isolation lock to be removed by someone other than its owner.

In this case, however, Mr Barron had made no attempt to contact Mr Marsh, who Mr McPherson knew to be onsite, prior to instructing Mr McPherson to “just take it off. I’ll do the paperwork later.” The Respondent submitted that this should be categorised as a management blemish only. Mr Marsh was not in any danger and Mr McPherson was an extremely experienced operator. The event was “a single, isolated, and out of character deviation from a standard operating procedure” by Mr Barron.

Mr McPherson, however, submitted that the actions of Mr Barron had left him in an impossible position. He either had to disobey the order of his supervisor, and likely face problems with him “down the track” or intentionally breach a life saving rule, putting the safety of Mr Marsh at risk, as well as his own employment. The order by Mr Barron was also in breach of the Coal Mining Safety and Health Act 1999.

The Commissioner agreed with the position of Mr McPherson, stating “Mr Barron’s election to ignore a life saving rule, to render a subordinate complicit in the breach and to demonstrate behaviour inimical to the fostering of a critical safety culture, cannot be excused in the manner proposed by the respondent.” It was determined that the management action could not be categorised as reasonable management action and, as such, Mr McPherson’s application for compensation was one for acceptance by the self-insurer.

Decisions around reasonable management action in the past have often considered singular, one-off events to be excusable as “blemishes” only, and still attract the exclusion under Section 32(5)(a) of the Workers’ Compensation and Rehabilitation Act 2003. This case demonstrates that employers and insurers cannot continue to hide behind this exception in all cases, and that the bar for what is “reasonable” may be rising.

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