For those who suffer from a psychological injury like depression or anxiety arising from work place issues, the question of any compensation payable for such an injury, can be confusing and confronting. Richard Faulks, Managing Director of Snedden Hall & Gallop and highly experienced compensation lawyer, provides clarification of recent cases relevant to those suffering psychological injury as a result of work place factors.
Historically
For employees of the Commonwealth or ACT governments, or those employed in circumstances where the relevant workers’ compensation law is the Safety, Rehabilitation and Compensation Act 1988 (Cth), the road to compensation has been very difficult. The government had made changes to the law which effectively prevented a claim for workers’ compensation where a psychological injury arose as a result of “reasonable administrative action taken in a reasonable manner in respect of the employment”.
For some time, Comcare in particular, has relied upon that exception in rejecting many claims, particularly in circumstances where a psychological injury was caused because of a performance appraisal or other similar administrative actions within the work place.
In cases where there were many other work place factors which did not comprise reasonable administrative action which contributed to a claim of psychological injury, the mere fact that one of the causes of the condition was an administrative action, would exclude liability under the relevant law.
Two recent cases
A recent decision of the Full Federal Court has suggested that, in the future, there may be a more sensible and balanced approach taken in assessing liability in those circumstances where there are a number of different work place factors and only one of them would come within the “reasonable administrative action” exception. The Full Federal Court in the case of Lim v Comcare followed the High Court decision of Comcare v Martin in finding that the reasonable administrative action must have a causal connection to the injury. That will only occur if the evidence shows that without the relevant so-called reasonable administrative action, the employee would not have suffered from the psychological injury.
What does this mean?
What this means is that if there are a number of different work place factors giving rise to the injury, it is not sufficient for Comcare or the employer department to simply say that one of the causal factors is reasonable administrative action and therefore the exclusion applies. A proper test is to assess whether, even without the so-called reasonable administrative action factor, the employee would still have suffered the psychological injury as a result of other work place factors.
This case, and the decision of the High Court in Martin, show that it is very important to have proper and well-structured medical evidence about a work place psychological injury in order to assist in the proper assessment of whether or not compensation is payable in these types of circumstances.
Snedden Hall & Gallop can assist you
At Snedden Hall & Gallop, we can assist with obtaining relevant and well-structured medical evidence to support your compensation claim.
Have you had your claim for psychological injury in the workplace refused by Comcare? We can also assist you in seeking review from Comcare or in the Administrative Appeals Tribunal if required.
Please contact us for any personal injury matter by phone on (02) 6285 8000 or by email. You can see details of our compensation representation here.
