There is growing support for national changes to both compensation and safety legislation in favour of workers suffering from PTSD. This Tasmanian decision confirms that lump sum payments for PTSD following physical assaults must be considered separately to any physical impairment. But what new challenges to whole person impairment assessments will be posed by proposed presumptive compensation to workers suffering from PTSD?
- Whether psychiatric impairments that do not meet threshold requirements can be combined with physical impairments for the purposes of a lump sum payment for whole person impairment under the Workers Rehabilitation and Compensation Act 1988 (Tas) (Act).
The worker was a public sector worker who was physically assaulted in the course of his employment on 28 January 2007.
He suffered an injury to his cervical spine and later developed Post Traumatic Stress Disorder (PTSD). His claim for compensation was accepted.
The worker’s whole person impairment (WPI) for his cervical spine was assessed at 5%. His impairment resulting from PTSD was assessed at a maximum of 6%.
The Act allows for a lump sum payment for psychiatric impairment where that impairment is assessed at no less than 10% (s71(2)(a)) The threshold for physical conditions is 5%.
The Act allows for WPI to be made up of a combination of impairments arising out of the same incident (s72(2)).
The worker sought a determination from the Workers’ Rehabilitation and Compensation Tribunal that his WPI was 11%, on the basis that the WPI for the physical condition of the spine could be combined with the WPI for PTSD as they both arose out of the same incident.
The employer disputed this on the basis that the worker had not met the threshold of 10% for his psychiatric impairment and therefore the psychiatric impairment could not be combined with the physical impairment.
The Tribunal’s decision
The Tribunal found that the PTSD was as a result of the assault. This should mean that the two impairments could be combined under s72(2)(b) above.
However, the Tribunal agreed with the employer’s position that the WPI for PTSD must be at least 10% before it can be combined.
In essence, this was because the Act contains separate provisions for dealing with physical impairment compared to psychiatric impairment (s71(1) and s71(2)). The main difference between those provisions is that the threshold for a physical injury is 5% and the threshold for a psychiatric injury is 10%. The second reading speech when the legislation was introduced, along with the Tasmanian WorkCover Guidelines on WPI, repeat that there is a 10% threshold requirement for psychiatric conditions. On this basis psychiatric impairment must be at least 10% of WPI.
Further, as the threshold provision (s71) appears earlier in the Act than the provision which provides for combination of impairments (s72), the threshold must be met before the combination can occur.
The result was that the worker only received compensation for his 5% physical WPI.
Implications for you
The Tribunal otherwise confirmed that the date at which the lump sum payment is to be calculated is the date of the original injury (or ‘injurious event’). This is interesting in the context of the Tasmanian Government, in an Australian first, introducing a Bill that would provide presumptive compensation to all public sector workers suffering from PTSD. Shifting the onus to the employer to disprove causation.
This Bill is in line with Federal Government recommendations to investigate presumptive legislation for psychological injuries in emergency service workers. However, at the Tasmanian level, the option of extending this presumption beyond the public sector is being investigated.
Part of the reason behind the recommendations is because PTSD sufferers are often exposed to a number of traumatic events and the difficulty for the worker to establish which event is the substantial cause can have an aggravating affect on the PTSD.
If this Bill is passed, assessing WPI resulting from PTSD may become difficult in situations where the traumatic events giving rise to the PTSD have occurred over various years. Medical evidence will be crucial and, if in doubt, seek legal advice before making a payment for WPI.
Click here for updates on the Tasmanian legislation. Click here for Federal Governments inquiry.