Psychological injury claims - with a date of injury on or after 13 April 2007
This guide is intended to provide you with an overview on how Comcare decision makers determine claims for psychological injury with a date of injury on or after 13 April 2007.
There are four parts to this guide:
1. Introduction
3. Threshold provisions for injury determination
4. Initial liability steps for psychological injury claims
Part 1 - Introduction
Claims for psychological injury have a major impact on Commonwealth workers' compensation premiums.
Claims for psychological injury characteristically:
- are a major contributing factor to program costs which are funded by agency premiums
- constitute the greater part of difficult and sensitive workers' compensation cases
- are complex and demand a high level of medical and legislative knowledge on the part of Comcare decision makers.
In the past, claims for psychological injury were often referred to as stress claims. It is important to note that this is a simplistic and inaccurate description. Stress, or stressors, are something that people undergo every day of their lives - it is part of normal human functioning, and actually keeps the heart pumping and our bodies working.
The term psychological injuries more accurately describes a range of conditions relating to the functioning of people's minds. While often prompted by workplace stressors, these conditions can be caused by physical injuries, diseases, exposure to toxins or underlying psychiatric issues.
Part 2 - Guiding principles
Comcare delegates will have regard to the following guiding principles:
- No fault legislation
- Natural justice
- Onus of proof
- Standard of proof
- Case law
No fault legislation
Under the provisions of the Safety, Rehabilitation and Compensation Act 1988, the Commonwealth has a no-fault workers' compensation scheme.
In a no-fault scheme, injured workers do not have to demonstrate that their employer has done anything wrong in order for an injury to be eligible for compensation - the requirements for liability are set out by law.
Even if an employee has been negligent or behaved inappropriately in the workplace, and that behaviour has contributed to the onset or worsening of their psychological injury, the injury may still be compensable.
Natural justice
Section 72 of the Safety, Rehabilitation and Compensation Act 1988 provides that Comcare decision makers must observe the principle of natural justice.
In the context of Comcare's decision making, the natural justice principle establishes two key rules:
- that decision makers must provide opportunity to a person whose interest will be adversely affected by any decision to be heard; and
- that decision makers must be disinterested or unbiased in any matter that has to be decided.
Onus of proof
Under the Safety, Rehabilitation and Compensation Act 1988, injured employees have no legal onus of proof. However, it is necessary for them to provide evidence to substantiate their claims.
Comcare also has an investigatory authority to obtain evidence. That power is provided under sections 57, 58 and 71 of the Act.
Standard of proof
Standard of proof means the degree of certainty with which contested facts must be established in order to be accepted as proved.
Under administrative laws, such as the Safety, Rehabilitation and Compensation Act 1988, the basis for decisions is established on the balance of probabilities. This means Comcare decision makers must decide:
- that more likely than not, that the fact or the facts relied upon by them existed at the relevant time
- if they are satisfied, or reasonably satisfied, as to the existence of the facts.
Case law
Many cases have gone before the courts for interpretation of phrases or words in workers' compensation legislation.
A great deal of weight is placed on decisions on question of law from the courts, to the extent that they set legal precedent. Prominent court decisions which have impacted on the operation of the Safety, Rehabilitation and Compensation Act 1988, or set the basis for policies, are listed in italics at the end of each section of this guide.
Part 3 - Threshold provisions for injury determination
Comcare decision makers will consider the following threshold provisions for injury determination:
- Finding liability
- The liability threshold
- Diseases and injuries in the legislative context
Finding liability
For compensation to be payable under the Safety, Rehabilitation and Compensation Act 1988, Comcare must find if liability for a claim relating to an injury exists.
Finding liability is a statement by Comcare of two things:
- what the claimed medical condition is
- whether the claimed injury or disease, or aggravation of either, is work related.
Finding liability does not automatically give injured employees access to all entitlement provisions under the Act. Each claim for time off work or medical expenses, or other entitlements, must pass a test of its own before it can be accepted and paid for.
The liability threshold
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 provides that:
"Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment."
There are only three tests to be considered when determining liability:
- there must be an injury within the meaning of the Act (sections 4, 5A, 5B, 6 and 7)
- a person must be an employee for the purpose of the Act (section 5) and
-
an injury must result in a loss, either:
o incapacity for work
o death
o impairment, or
o medical expenses.
Diseases and injuries in a legislative context
Claims for psychological injury are usually treated as diseases because identifying a single incident, which causes an injury can be difficult. This view has been supported by health professionals, as well as courts.
Section 14 of the Safety, Rehabilitation and Compensation Act 1988 provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee.
Injury is defined in section 5A(1) of the Act to mean, in part:
"... a disease suffered by an employee."
Disease is further defined in section 5B as:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment; that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment, Comcare may take the following matters into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.
Significant degree is defined in section 5B(3) as a degree that is substantially more than material.
Generally in this guide, all medical conditions that relate to the functioning of the mind are referred to as psychological injuries.
Part 4 - Initial liability steps for psychological injury claims
The outcome of an initial liability assessment will determine whether Comcare's liability for compensation is accepted or rejected. There are four steps that the Comcare decision maker will consider. These are:
- Compliance
- Medical relationship
- Employment relationship
- Exclusionary provisions
Decision makers use a computer guided decision making system. In the system, initial liability tests are posed as questions for decision makers to consider and answer.
Each question is linked to a commentary which provides information about the question, links to the relevant sections of Safety, Rehabilitation and Compensation Act 1988, as well as linking to relevant case law, medical standards and other relevant policies.
"Yes" or "no" responses drive questions until a determination is made. If there is an uncertain response, decision makers use investigative tools, such as correspondence to doctors, medical specialists, employees or employers, until sufficient information is obtained for determinations to be made.
Step 1 - Compliance
The Safety, Rehabilitation and Compensation Act 1988 requires that claims for compensation comply with certain conditions.
The main requirements are that the claim is:
- made by an employee, as defined in the Act (section 5)
- lodged as soon as practicable (section 53)
- in accordance with the approved form (section 54)
- accompanied by a medical certificate (section 54).
Step 2 - Medical relationship
A sound medical relationship to the condition being claimed is required in psychological injury claims - Comcare decision makers must determine if an employee suffers from a state of being that is outside the bounds of normal human functioning.
Diagnostic guides assist health professionals and Comcare decision makers by classifying and categorising medical conditions. However, it is not necessary for a psychological condition to fit strictly within such a framework. But it is necessary to decide if an employee's reaction to their employment is beyond the normal reactions of a normal mind to those circumstances.
Health professionals diagnose conditions from which people suffer. Comcare decision makers must consider those diagnoses to decide if there is a compensable condition.
Broadly speaking, diagnosis is based on three elements:
- history
- examination
- testing.
Comcare decision makers have to establish whether the history on which medical opinion is based is an accurate reflection of the circumstances of each claim. If there is inconsistency between the facts available to a decision maker and an opinion given by a health professional, the decision maker can:
- choose not to accept the medical opinion because it does not fully or accurately reflect the facts
- put the available facts to the health professional, or an independent specialist, for clarification
-
where there are conflicting medical opinions, make a decision based on the opinion with the most weight (for example, the opinion of one health professional may have more weight than another because of the person's qualifications and their opinion presents a more complete record of events).
Most diagnosis of psychological injury refers to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). This guide describes criteria and categories for psychological injuries. It also provides Comcare decision makers with a useful framework for evaluating medical opinion.
However a DSM-IV classification cannot substitute for a treating practitioner's judgment. If a condition claimed is not categorised in DSM-IV, or does not meet the DSM-IV criteria for a particular condition, Comcare decision makers can seek further medical evidence from a treating health professional or an independent specialist.
It is important to note that health professionals do not determine liability: that is Comcare's responsibility.
Step 3 - Employment relationship
Sections 4, 5A, 5B, 6 and 7 of the Safety, Rehabilitation and Compensation Act 1988, require that compensation can only be paid for injuries that arise in connection with employment.
The test applied for psychological injury claims is whether employment contributed in a significant degree to a psychological injury.
Section 5B(3) defines significant degree as
"...a degree that is substantially more than material"
In order to understand what "significant degree" is, it is useful to understand the meaning of "material".
The ordinary dictionary meaning of "materially" is "substantially, considerably". "In a material degree" requires an evaluation of all relevant contributing factors for the purposes of asking whether the employee's employment did or did not contribute materially to the suffering of the ailment in question ("the threshold evaluation"). Whether there is a material contribution in a case will be a matter of fact and degree.
Therefore, in considering whether the employment contributed in a significant degree, the Comcare decision maker must weigh the available evidence and make a determination as to whether there is a very strong connection between the employee's condition (or aggravation of condition) and their employment.
It is not necessary for an injured employee to show that there was a special, unusual or wrongful factor that contributed to their condition. Nor must they establish that their employer breached any duty of care. However an employee must show that there is a very strong connection between employment and the development of a condition.
In cases where there have been non-work related causes, the Comcare decision maker will have to be satisfied that employment was a significant contributing cause.
Federal Broom Company Pty Ltd v Semlitch (1964)
Re Welsford and Commonwealth Banking Corp (1984)
Westgate v Australian Telecommunications Commission (1987)
Comcare v Canute [2005]
Comcare v Sahu-Kahn [2007]
Perception
The determining factor in perception cases is whether there has been an actual incident, or state of affairs, in the course of employment that led to an injured employee's condition. A distinction can be made where a person's perception is a distortion of reality, in other words, the incident or state of affairs does not exist - this is not compensable. If there is an incident or state of affairs in the workplace, and an employee's perception of that has been established as contributing toa psychological injury, it is compensable unless exclusionary provisions apply. (refer to part 4. Initial liability steps for psychological injury claims, Step 4 - Exclusionary provisions).
The key points considered by Comcare decision makers are:
- whether an incident or state of affairs occurred in the course of employment
- whether that incident or state of affairs created a perception in the mind of an employee
- whether that perception contributed in a significant degree to the psychological injury.
A mere perception about something in the employment is unlikely to be sufficient to satisfy the "significant contribution" test.
If a Comcare decision maker finds all three criteria are met, then the requirements of the definition of disease are met and the condition is compensable.
A Comcare decision maker is not required to make any value judgements about whether or not an incident or state of affairs was reasonable or not.
Wiegand v Comcare (2002)
Kirkpatrick v Commonwealth (1985)
Bensley and Comcare (2003)
Step 4 - Exclusionary provisions
The Safety, Rehabilitation and Compensation Act 1988 (SRC Act) provides that in some situations injured workers are excluded from receiving compensation.
Compensation is not payable to injured employees if the injuries are:
- Conditions suffered as a result of reasonable administrative action taken in a reasonable manner (section 5A(1)). Administrative action includes:
- A reasonable appraisal of the employee's performance;
- A reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
- A reasonable suspension action in respect of the employee's employment;
- A reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
- Anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment (section 5A(2)).
- intentionally self-inflicted (section 14(2))
- caused by that employee's serious and wilful misconduct (section 14(3))
-
the result of that employee making a false representation, connected with their employment, that they did not suffer from a disease (section 7(7)).
Where there are multiple factors which result in the injury, and one such cause is found to be within the exclusionary provisions, then it is necessary to assess the contribution that the factor has on the claimed condition.
If one of the operative causes falls within the meaning of the exclusion, and this cause contributed significantly to the claimed condition, then the condition cannot constitute an 'injury' for the purposes of the Act.
Reasonable administrative action taken in a reasonable manner
Compensation is not payable for a psychological injury, as a result of reasonable administrative action taken in a reasonable manner in respect of an employee's employment.
In the workers' compensation context, reasonable administrative action has a very broad definition, which includes the specific actions identified in the definition in s5A(2) of the SRC Act, but can be taken to encompass "legitimate human resource management actions". Therefore, the definition covers the day-to-day administration of activities relating to the employment of an employee, whether specifically in relation to an individual or as part of the management of a group or the agency as a whole.
The matters for decision makers to decide are:
- The employee's condition was the result of the action;
- The action taken was administrative action or an activity done in connection with that action;
- The administrative action was reasonable; and
- The administrative action was taken in a reasonable manner.
Reasonable means action that:
- was lawful
- is not irrational, absurd or ridiculous
- is "relative or related to the conduct or behaviour giving rise to that action"
- is taken pursuant to the regulatory rules applicable to the employee
- involves "circumstances of fairness"
Comcare v Chenhall (1992)
Choo v Comcare (1995)
Inglis v Comcare (1997)
Pandos and Commonwealth of Australia
Repatriation Commission v Webb [1987]
Reasonable Appraisals, Counselling, Suspension and Disciplinary Action
The effect of the Safety, Rehabilitation, Compensation and Other Legislation Amendment Act 2007 is that the strict limitation on the interpretation of "reasonable disciplinary action" following the Federal Court decision of Comcare v Chenhall has been removed.
Informal counselling, performance management and the steps taken in connection with those activities and also steps taken in connection with disciplinary action are all now covered by the exclusionary provisions.
Disciplinary Action and Suspension Action
In the workers' compensation context, disciplinary action means reasonable action, lawfully taken against an employee in the nature of, or to promote, discipline. Comcare decision makers will have regard to the disciplinary provisions or guidelines in an injured employee's workplace.
Examples of action that the Administrative Appeals Tribunal has considered constitutes disciplinary action are:
- "Counselling" in relation to an employee's work duties. "Counselling" constitutes "advice offered or instructions given to the worker by the superior" following an "inquiry or "investigation";
- Termination of employment'
- Suspension of employment;
- Involuntary retirement;
- Performance interview.
Choo v Comcare [1995]
Inglis v Comcare [1997]
Pandos and Commonwealth of Australia
Tan v Comcare [1997]
Failure to obtain a promotion, reclassification or benefit, or to retain a benefit
Compensation is not payable for a psychological injury suffered by an employee as a result of their failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit.
In the workers' compensation context, obtain means to acquire. A failure to retain means a failure to maintain a hold upon or keep.
A promotion, reclassification, transfer or benefit relates to the terms and conditions of an employee's employment at the time of injury.
A failure to obtain a promotion is not limited to a failure to obtain a promotion to a specific position. Examples are:
- obtaining a new position in a restructured workplace
- transfer from full-time to part-time work
- obtaining a re-classification in light of annual performance reviews.
A benefit can be something to which an employee has as a work related entitlement, for example leave without pay.
Myers v Comcare (1997)
Golds v Comcare (1999)
Comcare v Susan Jane Parker (1996)
Trewin v Comcare (1998)
Patrick v Comcare (1997)
Barber v Comcare (1998)
Adams and Comcare (1998)
Lever and Comcare [2006]
Caused by an employee's serious and wilful misconduct
This provision precludes the payment of compensation, depending on the degree of injury, where an employee's wilful misconduct results in a psychological injury.
A Comcare decision maker will deem an employee who is under the influence of alcohol or non-prescription drugs to be guilty of serious and wilful misconduct. Decision makers consider whether:
- an employee was under the influence of alcohol or a drug (section 14(3))
- an employee's conduct was serious and wilful (section 14(3))
- an employee's conduct caused that employee's injury
-
the injury resulted in death or serious and permanent impairment (section 14(3)).
Under influence of alcohol or a drug
Under section Section 4(13) of the Safety, Rehabilitation and Compensation Act 1988, an employee under the influence of alcohol or non-prescribed drugs is deemed to be guilty of serious and wilful misconduct.
There must be evidence that an employee was under the influence of that substance.
If an employee is deemed to be guilty of serious and wilful misconduct under the provision of section s4(13), the Comcare decision maker then considers the degree of injury test, before payment of compensation is precluded under section 14(3).
The first question is whether the conduct is serious. Serious in this context means the misconduct in question, not the consequences. In deciding if a person's misconduct is serious and wilful, the decision maker does not have to be satisfied that the conduct gave rise to risk of injury; or that an employee engaging in the conduct was aware of the risk of injury.
Wilful means that the misconduct was deliberate, not accidental. If the act was a thoughtless act or negligence, it is not wilful for the purpose of the Act.
For this exclusion to apply, misconduct must have been the cause of an injury. That is, the injury would not have happened, if not for the misconduct.
If serious and wilful misconduct results in death; or serious and permanent impairment, this exclusion will not apply.
Comcare v Calipari (2003)
Elvin and Comcare (1998)
An employee can not be paid compensation in respect of an injury that they deliberately inflicted on themselves.
A Comcare decision maker must consider whether the effects of a psychological injury meant that an employee did not appreciate that their actions would result in self-harm.
An 'intentional' act is one of a person's own volition. An act is not intentional where their mind has become so unhinged as dethrone the power of volition. Carelessness or accident is also not sufficient to establish an intention for self-harm.
Innes v Commonwealth (1979)
Pearce and Comcare (1998)
An employee makes a false representation that they did not suffer from a disease
Compensation is not payable if an employee made a wilful and false representation, connected with their employment, that they did not suffer from a disease for which they later claim compensation.
To apply this exclusion, a Comcare decision maker must be satisfied that:
- an employee had a pre-existing disease
- an employee made both a wilful and false representation that they did not suffer, or had not previously suffered, from that disease
-
the representation was for purposes connected with employment with the Commonwealth.
To be wilful there must be an intention to mislead. A false statement that arises from carelessness or mistake is not sufficient for the purpose of applying this exclusion.
Schofield and Comcare (1995)
Porter and Comcare (1995)
Wilson and Comcare (1996)