Surveillance footage has no weight in claim for a psychological condition despite medical evidence that worker’s condition had improved

19 May 2021

The Administrative Appeals Tribunal found that an employee suffering from a psychological injury resulting from a workplace incident can be considered incapacitated for work 8 years later despite undertaking work in other fields, with the employee being able to claim compensation for his ongoing medical treatment expenses and incapacitation for work in his previous employment field.

In issue

  • The issue for consideration by the Administrative Appeals Tribunal (the Tribunal) was whether the applicant’s psychological injury could be considered an incapacity to work for the purposes of s19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) despite the applicant having capacity to work in other fields. Further, the Tribunal considered whether the applicant required ongoing medical treatment for the purposes of s16 of the Act despite his condition showing significant improvement.

The background

In March 2013, the applicant was driving a cash van for the respondent in the course of his employment, and was involved in a violent armed robbery. As a result of the incident, the applicant developed post-traumatic stress disorder and generalised anxiety disorder for which he regularly saw a psychiatrist and was prescribed regular medications. The applicant lodged a claim for worker’s compensation in which he noted that he had previously suffered a similar injury following an armed hold up that he had experienced in 2005. After the incident, the applicant resumed office and administration work for the respondent but suffered symptoms of his psychological injury in doing so. In August 2013, the applicant was told that the respondent was unable to continue to provide him with suitable duties and his employment was subsequently terminated.

A psychiatrist’s report in April 2013 identified that the applicant’s troubles with mental illness began in 2005 after the first armed robbery incident, but stated that there was no pre-existing mental illness to account for the applicant’s symptoms as they were in 2013. Another psychiatrist’s report in May 2014 noted that the applicant’s condition was substantially attributable to the workplace incident in March 2013, though his previous exposure to an armed hold up in 2005 may have increased the risk of his suffering from the generalised anxiety disorder.

In June 2017, the respondent issued a determination accepting liability to pay the applicant a lump sum for permanent impairment and non-economic loss on the basis of a 10% whole person impairment (WPI) in respect of his psychological condition in accordance with s24 of the Act. In this determination no compensation was awarded under sections 16 and 19 of the Act.

The reviewable decision

On 22 March 2019, the respondent issued the applicant with a reviewable decision that the applicant was not entitled to the payment of compensation for medical treatment expenses and incapacity benefits under sections 16 and 19 of the Act respectively. The respondent relied on surveillance footage of the applicant which showed him engaging in various activities such as walking, shopping, and using public transport, in addition to various medical reports which described the applicant’s psychological condition as having improved or been in remission and suggested that his incapacity for full time employment would only be if he were to return to the security field.

The issues on review

The applicant lodged an Application for Review in the Tribunal in relation to the respondent’s reviewable decision. The issues for determination were whether the applicant continued to suffer from his psychological condition arising out of the March 2013 incident, whether he required ongoing medical treatment for the purposes of s16 of the Act, and whether he suffered from an incapacity for employment for the purposes of s19 of the Act.

The decision on review

The Tribunal considered issues relating to the applicant’s credibility and determined that the applicant’s evidence regarding his psychological condition was credible. The Tribunal found that the issues suffered by the applicant as a result of the 2005 hold up were clearly different from the mental and physical issues which arose as a result of the 2013 incident. The Tribunal considered that the surveillance footage is not evidence of the applicant’s psychological state nor does the applicant’s psychological condition prevent him from engaging in the activities captured in the footage.

The Tribunal determined that the applicant does continue to suffer from a psychological condition and that signs of improvement are not sufficient to mean that the condition has resolved. The Tribunal made a finding that the applicant still required treatment to manage his condition and that he was permanently incapacitated from returning to work in the security field. The Tribunal set aside the respondent’s March 2019 decision and remitted both the second and third issues to the respondent for determination of monetary compensation.

Implications for you

What the above decision shows is that surveillance footage in psychological claims does not have significant weight when it comes to assessing whether a worker has ‘recovered’ from their psychological injury if you compare it with the other evidence on file. What it can show is an improvement in the condition or that a worker can perform certain activities of daily living, however you need to check if that matches the medical capacity in any event and then obtain further medical evidence that supports whether or not the worker can return to those employment duties that they were doing prior to the incident at work. Surveillance can be useful but is always best used in conjunction with other objective medical evidence.

Hawk and Linfox Armaguard Pty Ltd (Compensation) [2021] AATA 800

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