On 20 May 2021, the Governor of Queensland gave assent to a bill passed by the Queensland Parliament that introduced a more streamlined pathway for first responders and eligible employees who are diagnosed with post-traumatic stress disorder (“PTSD”) and are making a claim with WorkCover Queensland or another insurer falling within the statutory compensation scheme under the Worker’s Compensation and Rehabilitation Act 2003 (“WCRA”).
What has changed?
For most claimants under the WCRA, statutory compensation will be payable if there is an injury sustained by a worker (which includes police officers thanks to the Police Service Administration Act 1990). An injury is specifically defined in the WCRA as personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
This places the onus or responsibility of proof on the worker to prove that they meet the requirements of the WCRA. This could involve the worker providing medical reports or certificates supporting the connection between their condition and their employment and making submissions to WorkCover on why their claim should be accepted. This can be a challenging task, particularly for a layperson unfamiliar with the provisions of the WCRA.
Per section 32(5) of the WCRA, it is also possible to have a PTSD claim rejected,in circumstances where the PTSD arose from:-
- reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
- the worker’s expectation or perception of reasonable management action being taken against the worker; or
- action by the Regulator or an insurer in connection with the worker’s application for compensation.
Examples of actions that may be reasonable management actions taken in a reasonable way include:-
- action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker; or
- a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker’s employment.
As a result of the new amendments, there will now be a presumption that PTSD is a work-related injury and effective immunity from section 32(5) if:-
- the person is diagnosed with PTSD by a psychiatrist, in the way prescribed by regulation;
- at any time before the diagnosis, they were classed as a first responder or eligible employee.
This is unless otherwise proven that the condition did not arise out of, or in the course of, their employment, or if the employment is not a significant contributing factor.
This essentially reverses the onus on the employer to show that the worker does not meet the requirements of the WCRA and relieves workers of the burden of supplying documents and making submissions that establish a connection between their PTSD and their employment.
Who is a first responder or eligible employee?
The precise definitions of first responder or eligible employee are found at sections 36EB and 36EC of the WCRA respectively.
First responders encompass persons whose employment requires them to respond to incidents:-
- that are life-threatening or otherwise traumatic; and
- for which time may be critical to prevent actual or potential death or injury to persons, or to prevent or minimise damage to property or the environment.
This would include for example, police officers, paramedics/ambulance officers and firefighters.
Eligible employee (which includes relevant volunteers covered under the WCRA) has a much broader scope and encompasses persons whose employment requires them to experience repeated or extreme exposure to the graphic details of traumatic incidents by—
- attending the scenes of traumatic incidents; or
- experiencing traumatic incidents as they happen to other persons; or
- investigating, reviewing or assessing traumatic incidents that have happened to other persons.
Traumatic incidents include an incident that exposes a person to, or to the threat of death, serious injury or sexual violence.
Examples of eligible employees include:-
- a person whose job is to recover human remains;
- a fire communications officer responding to calls for information and advice in emergency situations;or
- a person whose job is to investigate complaints of child sexual abuse.
Statutory vs common law claims
While these recent changes no doubt benefit persons seeking to make a workers’ compensation statutory claim, they do not make any changes to common law claims for damages, such as a claim that the employer’s negligence caused a person’s PTSD. Statutory compensation is a no-fault scheme, unlike common law which requires fault on the part of the employer in causing the PTSD. One can view the recent changes as merely introducing more lenient terms to an insurance policy for workers rather imposing a higher common law duty of care on employers. We have previously written about the ongoing challenges emergency services workers face when making claims at common law. Establishing employer fault is rarely an easy task in emergency services roles where exposure to traumatic incidents is part of the job description.
