22 Nov 2012
Using generalities to assess work safety risks is generally a risky business
by Shae McCartney, Robert King, Andrew Wydmanski
When employers assess an employee's fitness for work they must consider the employee's actual fitness and not make general assumptions about likely fitness.
Making assumptions about a person's fitness for work needs to be done carefully, based on the facts and evidence of the particular person or case. Basing decisions on general assumption of future risk may invalidate action taken in response.
In MBR v Parker  QCA 271, the Queensland Court of Appeal set aside a doctor's decision that a worker was permanently unfit to operate heavy machinery. Dr Parker did not examine the worker personally, but relied on information recorded by the worker's own medical practitioner about the worker's BMI, waist and neck measurements and weight.
The decision reinforces the fact that when employers assess an employee's fitness for work they must consider the employee's actual fitness and not make general assumptions about likely fitness. This also follows when assessing the risks that arise from a hazard, of health problems that may affect workplace health and safety.
The medical assessment of the worker
The worker was employed by Watpac as a coal mine worker in the Curragh coal mine. He suffered a whiplash injury; before returning to work, Watpac sought a fitness for work assessment from its Nominated Medical Advisor Dr Parker.
The worker was not examined by Dr Parker; rather medical notes from the worker's Examining Medical Officer were provided to Dr Parker. Dr Parker completed a fitness for work Health Assessment without examining the worker. He relied on the notes by the worker's doctor, namely:
Based on general observation of a patient with these statistical attributes Dr Parker concluded that:
- the worker had a significant risk of a sudden heart attack; and
- this significant risk led to the worker being permanently restricted from operating heavy machinery, because of the serious risks this would pose for the worker's colleagues.
Dr Parker did note that he might clear the worker if he underwent further testing.
This decision arises out of the particular circumstances of the Coal Mining Safety and Health Act 1999 (Qld) but may also have broader implications. The Act provides that the coal operator must maintain an acceptable level of risk at a coal mine.
Part of the employer's duties under the Act include appointing a "Nominated Medical Advisor" (NMA) who undertakes Health Assessments of employees. The assessment was used to determine whether the employee posed an unacceptable risk to health and safety at the mine.
What the Court of Appeal had to decide
The Court had to decide two matters on appeal:
Whether the worker was subject to a "restriction" under the Act preventing him from undertaking his current position; and
Whether Dr Parker could conclude that the worker's restriction was permanent and that no further review was necessary.
What the Court decided
In a unanimous decision, the Queensland Court of Appeal held that the worker's obesity and large neck were not present "restrictions" on his capacity to safely work as an operator. In any case, Dr Parker had admitted that obesity alone could not accurately predict a person's risk of cardiac illness or heart attack.
Writing for the Court, President McMurdo stated that the Health Assessment form did not require the NMA to predict whether the worker was at risk of developing future restrictions, such as a heart condition. Rather, the BMI and neck size should only be treated as general prompts to inform an overweight worker of general health dangers of obesity and the benefits of losing weight. Otherwise they could only identify existing restrictions on the worker's ability to work safely, such as being too short or too tall to safely work in a particular area or machine.
In the alternative, President McMurdo noted that Dr Parker should not have concluded from the employee's size that he was permanently unfit for his role; rather, he should have arranged for a more comprehensive health examination.
The worker's appeal was upheld and the adverse health assessment was set aside.
This decision may have been different if, for example, Dr Parker had concluded that:
the worker did not meet the rating of equipment at the mine;
the worker was at risk of unsafe access or egress; or
in an emergency, the employee may not be physically capable of leaving the mine.
These issues were not raised on the facts of the decision.
Assessment of actual risk is a key obligation for employers under legislation such as the Coal Mining Safety and Health Act 1999 (Qld). However, the law seeks to achieve an "acceptable" level of risk, not necessarily to remove the risk entirely. Employers must balance their safety obligations with the need to act reasonably towards employees.
Employers should not use individual risk factors, such as obesity or smoking, to make assumptions about an employee's overall health. A holistic approach, looking at physical limitations and the impact of restrictions, should be considered.
Employers should therefore have their medical advisor conduct comprehensive investigations into the health of at-risk employees against the requirements of the position before drawing conclusions on fitness.
The Coal Mine Workers' Health Scheme in Queensland (and its predecessor, the Coal Board Medical Scheme) is strictly regulated and has been the subject of a number of decisions as to its scope and limitations. Employers in the Queensland coal industry must therefore consider its limitations if using it to assess the fitness for work of mineworkers.