1. The definition shouldn't be used to collect injury and illness data that can be obtained from ACC data

Although there was general acceptance of the need for the review, the objects of the revision was challenged by some submitters - particularly with respect to the definition being broadened in scope to include less serious injuries for data collection purposes.

Submitters questioned why there was additional reporting of minor injuries when they were unlikely to be investigated further by the Department and while more comprehensive injury and illness data is available from ACC records.

Related to this, numerous submitters felt the broader coverage of the draft for data collection purposes would cloud its other uses: particularly to determine "significant hazards", and to define the work an employee can refuse as unsafe.

The Department notes these comments, also that the injury data available to the inspectorate has improved considerably since parties were originally consulted on the revision. It recommends raising the threshold for serious harm to a level of harm that suggests there is a need for the involvement of the health and safety inspectorate to ascertain whether or not there has been compliance with the Health and Safety in Employment Act.

2. The draft's coverage of soft tissue injuries is too broad

A majority of employers, industry groups and professional groups described a greatly increased compliance burden if the draft were implemented. They submitted that a major cause of this is that the draft sets too low a threshold for soft tissue and other minor injuries, including gradual process injuries that need to be actively managed in a range of work settings, but should not be deemed "serious harm".

Employers and others also submitted that lowering the draft's threshold would trivialise the harm and not encourage employers and others to pay more attention to "serious" harm.

The discussion document asked submitters to choose between "absence from the workplace" or "unable to perform normal duties" as a threshold for physical incapacity.

The Department notes that, although absence from the workplace provides a sharper distinction that would be more easily understood and applied by employers and others, it could result in some quite serious conditions, such as broken limbs or serious musculoskeletal conditions not being reported. For that reason it proposes "inability to complete normal duties" as the trigger. This option, in addition to restricting the first clause to physical harm arising from a single incident, and in combination with other changes, will provide adequate coverage of soft tissue injuries.

3. The definition will be made clearer by grouping it into the three main types of harm that are considered "serious"

Submitters said that the definition could be grouped and worded much more clearly and that this would aid the majority of users.

The draft definition had followed the format of the current definition and was presented as a series of legal clauses alone, rather than using headings to indicate the types of harm being caught by each of the different clauses.

The discussion document mentioned the possibility of alternatives, and categories of injury and illness used by legislation overseas. Various submitters, including professional bodies and practitioners in businesses showing best practice, indicated a preference for types of harm being grouped into three main categories: trauma injury, acute illness in specified circumstances, and chronic illness or injury requiring diagnosis or treatment.

Other submitters suggested a degree of confusion around the meaning of the draft definition. This added support to submissions that the definition could have a more coherent structure to improve clarity for users.

The Department recommends that the definition is grouped in three distinct clauses, each describing a category of harm:

1. trauma injury;
2. acute illness or injury (in specified circumstances); and
3. chronic or serious occupational illness or injury.

4. Diagnosis should be required for all types of serious harm not resulting from a single exposure to a workplace hazard

Submitters said the reference to gradual process injuries in clause 1 of the draft, in combination with using the phrase "unable to perform their normal duties" set the threshold too low. They submitted this was inconsistent with ACC injury management practices.

Submitters asked that the definition set a threshold of diagnosis by the appropriate medical specialist for gradual process injuries, as is proposed for mental harm, and for better alignment to ACC definitions and approaches.

Numerous submitters referred to the variability of the medical profession in determining incapacity, and varying access to diagnosis and treatment. There were references to "the socialisation of medicine", where GPs apply social - rather that strictly clinical - values to the presenting patient. The Department notes this is an issue where medical diagnosis and treatment is used to set the threshold for reporting.

The Department's recommendation is that all chronic illness and injury resulting from exposure to a workplace hazard should, where possible, be confirmed by diagnosis by the appropriate specialist medical practitioner. This is consistent with other recommendations to improve and clarify the definition in response to point 3 above.

5. The draft's references to "contact with any energy source" and "fall or physical impact" are too broad and need to be better defined

There was general agreement with the content of clause 3 of the draft, which sets a lower threshold for reporting acute illness in certain circumstances.

One such circumstance is "contact with any energy source", and another is "a fall or other physical impact". Submitters suggested that both of these are too broad in the draft, and that more serious cases would be caught by clauses 1 or 4 in any event.

The Department agrees and proposes that clause 3(c) of the draft is amended to refer to "any electrical, combustible or mechanical energy source".

The Department also proposes that clause 3(d) is amended to refer only to "a fall from one height to another", rather than all slips, trips and falls resulting in a visit to the doctor.

6. The draft's coverage of injuries to non-employees is too broad in some circumstances

Departments or Crown agencies responsible for public areas, such as the Department of Conservation and district health boards, and supermarket operators submitted that the coverage of members of the public visiting workplaces was too wide. They submitted it would be difficult, if not impossible for them to meet their obligations to report in many cases.

The Department notes that in many such cases information about injuries is as likely to be received by complaints, either to the dutyholder, or the Department. It proposes minor changes to the draft to set the threshold at a level where reporting is more achievable for businesses and other agencies responsible for public access areas, while keeping the definition consistent with the policy intent of the 2002 amendments.

7. Explanatory materials and implementation of the revision were seen as important for it to be successful

Consistent with the relatively high interest in the discussion paper, and the number of submissions received, there were many good suggestions on the provision of guidance and support for employers and others after the Order in Council is passed.