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Article #2 - Is a psychiatric injury a disease, a personal injury or both?

Article #2 – Is a psychiatric injury a disease, a personal injury or both?

Published on August 12, 2021 by Hanaan Indari and Thomas FelizziHanaan Indari and Thomas Felizzi

In this series of articles, Thomas Felizzi from our Compensation Law Team looks at Psychological and Psychiatric injuries in Workers Compensation including:

  1. What constitutes a psychological injury?
  2. Is a psychiatric injury a disease, a personal injury or both? 
  3. What are the defences against a claim of psychiatric injury? 
  4. Discrimination damages versus workers compensation benefits 

In this second article of the series, Thomas looks at the question – Is a psychiatric injury a disease, a personal injury or both?

Is a psychiatric injury a disease, a personal injury or both?

A psychiatric injury (or the physiological effect) can occur as a result of a specific event, such as an experienced traumatic incident, or as a result of exposure to multiple events or repeated events over a period of time, such as bullying and harassment, or a combination of both.

Despite the repeated events over a period of time, the injury can still be a personal injury within section 4(a) of the 1987 Act.

The terms “personal injury” and “disease” are not mutually exclusive (Zikar v MGH Plastic Industries Pty Ltd [1996] HA31; 187 CLR 310).

Disease – section 4(b)

Development of a psychiatric injury, such as that of a major depressive disorder, could be characterised as a disease.  In the case of Iman v NSW Police Force [2013] NSW WCCPD11, Former Deputy President Roach considered whether a psychological injury was a disease or a personal injury and particular reference should be had to paragraphs [264] – [268] of that decision. When discussing a major depressive disorder, Deputy President Roche considered how a disease is caused when the body is unable to repeatedly deal with the stress imposed upon it,  the gradual process of a disease and how it could “be acquired a little or little more from day to day.”

It is therefore important to consider how the personal injury or disease, being psychological in nature, is framed in a workers compensation claim. If there is no underlying or pre-existing condition, but a vulnerability or predisposition to that condition which was aggravated, a psychological injury arguably could be characterised as the development of a disease in accordance with section 4(b)(i) of the 1987 Act.

It is also important that there is an expert medical opinion that supports this characterisation of the psychological condition being a personal injury or disease because it is up to the worker to establish that the employment was the main contributing factor to the development of the disease. Again this is why it is important to draft a detailed statement explaining the cause or the causes of the psychiatric injury and particular regard needs to be had to the questions asked of the expert.

It is important to remember that the term “Main contributing factor needs to be satisfied when establishing a disease injury, is to be contrasted to section 9A of the 1987 Act where the worker is required to demonstrate that the employment was a “substantial contributing” factor to the personal injury.

Personal Injury – s 4(a) and s9A

The term “main contributing factor” is arguably more difficult to satisfy, stringent and it does permit other factors to contribute to the injury.

Alternatively, if an injury is a personal injury within the meaning of section 4(a) of the 1987 Act, employment must be a substantial contributing factor to the injury for it to be compensable: (see section 9A of the 1987 Act and Kelly v Secretary, Department of Family and Community Services [2014] NSWCA 102 (“Kelly”).

9A No compensation payable unless employment substantial contributing factor to injury

No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.

Note : In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.

 (2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)–

the time and place of the injury,

the nature of the work performed and the particular tasks of that work,

the duration of the employment,

the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,

the worker’s state of health before the injury and the existence of any hereditary risks,

the worker’s lifestyle and his or her activities outside the workplace.

A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—

the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,

the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatmenthospital treatmentambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.

This section does not apply in respect of an injury to which section 1011 or 12 applies.

The employment will be a substantial contributing factor to the injury if its contribution is real and of substance (Badawi v Nexon Asia Pacific Ltd t/as Commander Australia Pty Ltd [2009] NSW CA324].

Just because the injury happened in the course of the worker’s employment or that it arose out of the employment, does not mean it is a compensable injury.  Sections 4 and 9A need careful consideration and all parts of the employment need to be looked at closely. When looking at the employment of the worker you need to look at the incident or state of the workplace, what they were exposed to in performance of their duties and whether they would have otherwise been exposed.  Guidance is provided in section 9A(2) of the 1987 Act.

Consider, what was the worker doing in his or her employment that caused the injury, as defined by section 4 of the 1987 Act? (see Mercer v ANZ Banking Group [2000] NSW CA138).

A causal connection between employment must be substantial but, it allows for there to be other contributing factors to the injury. It cannot just be temporal. The strength of the connection between employment and the injury is the question in issue and the determination of that involves a matter of impression and degree i.e. what are the contributing factors to the finding that the employment was substantially contributing to the psychiatric injury (Badawi v Nexon Asia Pacific Limited t/as Commander Australia Pty Ltd [2009] NSW CA324).

The interplay of sections 4 and 9(a) will be explored in the following two cases:

Kelly v Secretary Department of Family and Community Services – reference above

Nicole Elizabeth Prince v 7 Network (Operations) Ltd [2019] NSWWCC313

 Kelly Case

On 9 January 2012, Wendy Kelly was in the course of her employment collecting two residents with intellectual disabilities from an address in Orange, when she was approached by a man who she knew, and who also worked for the same employer and was in the course of his employment at that time. The man confronted her in a manner she described as aggressive, intimidating and threatening.  His behaviour however arose out of a conflict between him and Mrs Kelly’s daughter and was not about work.

Mrs Kelly’s evidence was that she did not have anything to do with him outside of work.

The employer did not dispute that Mrs Kelly had suffered a psychiatric injury, or that the injury was a result of the encounter, but it did dispute that she was entitled to compensation, because even though injury arose out of confrontation which had a temporal connection with Mrs Kelly’s employment, it had no other connection with her employment and arose out of a family matter. An arbitrator found in favour of the worker but was overturned on appeal to Deputy President.  The Deputy President considered that the employment was not a substantial contributing factor because the subject matter of the dispute between Mrs Kelly and her co-worker was not related.

The Court of Appeal in Kelly considered that the Deputy President had erred because his reasoning suggested that he would have been satisfied that the employment was a substantial contributing factor only if the subject matter of dispute was to some extent employment related.  His Honour Justice Basten at [27] – [28]:

“The subjective basis of an attack by one co-worker on another, during the course of their common employment may be a relevant factor in some cases, but in many it will not be. Where it is the common employment of two workers which leads to the outbreak of aggression in the course of the employment, in circumstances where such an incident would probably not have occurred absent the common employment, the source of the grievance felt by the aggressor is less likely to be relevant and less likely, if relevant, to carry significant weight.

 The Deputy President acted on the basis that there needed to be a substantial causal nexus between the grievance which motivated the aggressor and the nature of the employment of the worker. That approach involved a restriction on the terms of s 9A which is not found within the language of the provision, nor does it arise by way of reasonable implication. To limit the scope of the inquiry in this way was an error with respect to the proper construction of the statutory requirement. The common employment was not “merely a temporal element”, of no substantial causal significance, nor was it correct to dismiss it as only giving rise to causation in the “but for” sense. Accordingly, the errors sought to be identified were based on a wrong construction of the statute”

 House Rules case

Another decision to consider, is within the context of a reality TV show being Nicole Elizabeth Prince v 7 Network (Operations) Ltd [2019] NSW WCC313 (“Prince”).

The case of Prince provides another example discussing the meaning of “substantial contributing factor”. A large part of the decision though, deals with whether or not the worker was a deemed worker pursuant to section 4 of the 1998 Act.  For the purposes of this paper, this part of the decision will not be discussed; save to say, that Ms Prince was determined to be a worker for the purposes of compensation under the 1987 Act.

Ms Prince applied with her friend Ms Taylor as contestants for the television show known as House Rules.  They filmed some pieces to camera, had promotional photographs taken, attended a physical and a psychological assessment and were told by Channel 7 that they were chosen for the show.  In early November 2016 the applicant and Ms Taylor attended a briefing in Sydney with all the other teams. They were aware that House Rules is a home renovation reality TV show which pitches pairs of contestants against one another in order to win a prize of $200,000 at the end of the show. Ms Prince and Ms Taylor each signed an agreement where the applicant was paid $500 per week with a further $500 allowance per week during her time as a contestant of the show.

Ms Prince described a difficult working environment. She recalled an incident where she was placed in a motel that was dirty and mouldy and once complaining about this, was told that ‘everybody was working in substandard conditions and that she should stop being so ungrateful’ and even though Chanel 7 would help her move on that one occasion, it would not happen again.

Ms Prince prepared a statement which indicated that she was isolated, with Ms Taylor, from other working teams and reported the following:

“I felt harassed and bullied during the filming, this continued throughout all of the renovations.  It was not only condoned by the producer, but it was aggravated and even encouraged by them.

During every camera interview both myself and Fiona complained on film that we were being subjected to isolation, bullying and harassment by the other teams.

On one occasion I watched Fiona be physically assaulted. When I complained to Channel 7, I was threatened that Fiona and I would be portrayed negatively.

True to their threatening words, Channel 7 portrayed Fiona and I as bullies in the episode featuring our team which went to air on or around 17 April 2017.  After our episode was aired I was subjected to online abuse on the Channel 7 Facebook page, including receiving threats of serious physical assault.  I have been fearful for my safety ever since.

Since our episodes and program aired I have not been able to obtain work and have been informed this was due to how I was portrayed as a bully. I am no longer offered interviews for jobs on work, which before my injury I did not have any trouble obtaining interviews and successfully getting the work and job. I felt devastated and worthless about the loss of my career and working life.

After our episode aired I wanted to kill myself and I started drinking more alcohol in an attempt to self medicate my injury”.

Ms Prince also detailed that she needed to score other teams’ work but there was hatred from other teams. She understands that Ms Prince and her partners critical points on the renovation work done by other teams were provided to them directly, but none of their positive comments were relayed. As a result, all the other teams felt they Ms Prince and Ms Tatylor were nasty people.  Following Channel 7 continued to portray them as nasty bullies, which was also done by New Idea, a magazine also owned by Channel 7.

Arbitrator Berg found, amongst other things, the following:

There was little doubt the applicant was placed in a hostile environment in the course of her employment…

There was editing of the footage from the program in such a selective manner as to portray them in a certain negative light

 Moreover, I accept the respondent had the power to edit and control the content and comments to its social media platforms such as its Facebook page. The evidence is unequivocal that the respondent had control of those pages.  There is also no doubt the applicant drew the respondent’s attention to the comments posted on those pages.

 I find it extraordinary, in the circumstances where the respondent was made aware by the applicant of hateful comments posted on its social media platforms, that it did not take steps to either remove those comments or to close the comments on its own post.  The failure to do so represents, in my view, a factor to which the applicant has reacted and which has contributed to her injury.

 I accepted Mr Tanner’s submission that the availability of a retained psychologist is suggestive of the program being a contentious and psychologically fraught working environment.

 In my opinion the respondent’s lay evidence that the other contestants regarded the applicant as a bully is itself indicative of the breakdown in the relationships on the set of the show which I accept, with along with the editing of the program and its social media posts, the main contributing factor to the onset of the applicant’s injury.

 The fact that each of the contributing factors arose out of or in the course of employment relationship satisfies me on the balance of probabilities, in adopting a common-sense approach to the cause of the applicant’s condition, that her employment with the respondent was not only a substantial contributing factor to her injury, but was the main contributing factor to its development.  There is no suggestion of any relevant history of pre-existing psychological or psychiatric injury or illness on the part of the applicant.

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