In our practice we commonly act for workers in the personal care or community care sector who suffer injury at work due to the employer’s fault. Injuries often happen at people’s homes or outside while undertaking community based activities. In this article we have summarised some of the issues that we see in these types of claims.
This guide is aimed at workers in Queensland who provide personal care services in people’s homes.
Injuries to personal carers fall into one of three categories.
Firstly, injuries happen when the home where you provide services is unsafe. For example, stairs may be slippery, home appliances can break down and become hazardous, animals are not properly restrained and so forth.
The second category is unsafe work practices. For example, working with patients in wheelchairs is physically demanding. This can lead to injuries over time (such as repetitive stress on your spine) or alternatively, there can be a sudden injury due to an incorrect work practice – we once acted for a client who suffered a knee injury from a wheelchair that was not properly restrained by a co-worker.
Thirdly, we see injuries arising from violence. Some patients with particular medical conditions can become violent, and a physical assault can often cause long lasting and serious psychological injuries (in addition to physical injuries).
When you work as a personal carer, your employer owes you a duty of care. The duty is to take all reasonable steps to prevent injuries.
In practice, when an incident happens, all too often employers will say: “This injury was totally unexpected, no one could have foreseen this“.
And yet when we investigate these matters, very often we find that the incident would have been entirely foreseeable if the employer had undertaken even just a basic risk assessment. (By the way, just because you work for a large organisation, don’t assume they have done proper risk assessment – often they have very poor risk management practices).
In fact, we have found that when an employer says the incident was “unexpected”, there are in fact freely available industry guidelines which highlight the very risk that employers say was not foreseeable. For example, in Queensland there is a specific guideline called A Guide To Working Safely in People’s Homes. If employers followed the guide, many common injuries would be preventable.
One of the reasons injuries can occur is that sometimes multiple organisations are involved in providing care to patients but they don’t clarify between them who is responsible for safety. For example, one company can decide the type of services offered, but the actual care services are performed by another company. Each of them think the other is responsible for safety. The injured worker pays the price…
The other issue is when the employer has multiple carers who rotate. One might experience issues but doesn’t report it. The other worker doesn’t find out about the problem in time and sustains an injury.
These are all issues that the employer has to think about in advance and “map out” processes to make sure there is no breakdown in communication lines.
One situation which can lead to injuries is when workers look after patients in wheelchairs. For example, when it comes to lifting these patients, sometimes there is a hoist in the home, sometimes there isn’t which makes the job of lifting patients harder. But even if there is a hoist, the lack of training provided to workers can cause problems. One specific case which we acted in involved two workers who wanted to lift a patient using a hoist. But they weren’t properly trained and were not told what to do with the wheelchair as they lift the patient. During the lift, the wheelchair brake was not applied, the wheelchair hit our client’s knee, causing permanent knee injuries to the client.
Our investigations revealed the 2 workers each had 2 weeks of prior experience as personal carers, neither of them had been shown how to undertake the task safely, and they were rostered to work together, rather than each of them being rostered with a more experienced “buddy”. The incident was bound to happen.
A significant source of risk to workers is being assaulted by the people they look after. Patients often have medical conditions which cause a change in their normal behaviour (for example dementia) and on occasions patients can become aggressive.
This is made worse by the fact that personal care services are provided in people’s homes, so workers are isolated and may not be able to call for help.
We see in practice that when employers agree to provide services to patients, they fail to undertake an initial detailed assessment about the patient to identify if there is a risk of aggressive behaviour.
An employer has a duty to undertake an in-home risk assessment when they sign up a new patient. If the risk assessment identifies potential for aggression, the employer must try and identify the cause of the aggression and whether there are steps that can be taken to eliminate the risk of injury to workers.
Here is a crucial point: if a risk assessment shows that a patient is potentially aggressive, but the employer is unable to identify ways to protect against injury (based on evidence), the employer may have no choice but to decide to not provide services to the particular patient.
In other words, if the employer doesn’t carry out a risk assessment then it’s not good enough to say “we didn’t think the patient was aggressive”. And if the risk assessment shows real potential for aggression, it’s not good enough to say “there wasn’t any way to prevent physical violence” – if there is no way to guard against the risk, the employer shouldn’t send workers to work for that patient.
One of the reasons employers must be very careful when agreeing to provide services to potentially aggressive patients is because if violence occurs, there is a real risk that injured workers develop psychological injuries.
This is unsurprising, considering that physical assault by a patient is sudden, unexpected, the worker may fear for their life, and they are in isolation without the ability to call for help or escape.
We have significant experience in representing personal carers who sustained injury at work. We have seen many different situations, but just as importantly: we are familiar with how the large providers work, we know their processes and we can form a judgement very quickly as to whether you have a claim that’s worth pursuing.
Call us on (07) 3063 2268 and we will schedule a call with Oszkar Denes, our principal solicitor, who can advise you about your options.
Many firms try to rush you to sign up with them without carefully considering your options. We encourage you to first learn about your personal injury claim. You should ask yourself:
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In all of our personal injury compensation matters, we act on a No Win – No Fee basis. What that means is, there’s no upfront cost to you.
In Queensland, most compensation firms will charge you 50% of your compensation amount – the maximum allowed at law. This is very expensive. Our fee is different. We will cap our fee at 25% . Remember also, these are the maximum fees we will charge. If our fee in your claim is less, then we charge the lesser amount.
Before you engage us, we will provide you a written Disclosure Notice and a Client Service Agreement. These documents set out in detail the service we provide, as well as our fees and outlays. Before you sign anything, you can take these documents home with you, and study them with your family. You can take as long as you need, there is never any pressure from us. If anything in these documents doesn’t make sense to you, we can discuss it with you and you are free to ask another lawyer to give you advice. And remember, no win – no fee agreements come with a 5 day cooling off period for extra peace of mind.