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Determining employer liability for psychiatric conditions

When determining liability for an injury or condition (whether primary or secondary), the question is whether the injury or condition was significantly contributed to by the worker’s employment.

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Determining an employers contribution to the injury or condition considers substantially more than the material contribution. It also takes the following factors into account:

  1. the duration of the employment;
  2. the nature of, and particular tasks involved in, the employment;
  3. any predisposition of the employee to the ailment or aggravation;
  4. any activities of the employee not related to the employment; and
  5. any other matters affecting the employee’s health.

In the case of DJVD and Comcare (Compensation) [2020] AATA 4614, the AATA found Comcare liable for a worker’s secondary psychiatric condition which developed after she suffered two soft tissue injuries at work. She retired years later by reason of incapacity.

After her retirement, medical evidence revealed her second soft tissue injury was caused by a temporary aggravation of an underlying degenerative process. Comcare was cleared of liability for this injury and sought, unsuccessfully, to clear itself of liability for the secondary psychiatric condition.

The worker possessed a number of critical and relevant vulnerabilities that predisposed her to the development of a psychiatric condition, including existing anxiety, hospital admissions and a history of sexual assault. She required repetitive treatment for these concerns.

However, the AATA found the worker’s longstanding pain stemming from her soft tissue injuries and the impact it had on her work and roles, were also clearly factors in the development of her psychiatric condition. The AATA drew a distinction between the lesser form of psychiatric condition the worker was predisposed to, and the more serious condition she suffered after her work-related physical injuries, which ultimately took away her ability to continue in employment.

Lessons for employers

  1. Mental health effects, secondary to an injury, do not necessarily cease when the physical injury is resolved.
  2. A worker’s predisposition to the development of a psychiatric condition does not preclude an employer’s liability if a work-related injury transforms their condition into one which is more serious.

Written by Nes Demir

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Our team is here to provide the right advice for your business and workforce. If you have a question or require assistance, please contact Kim McLagan.

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