Johnston Withers addresses mental health in the workplace

 In Employment Law

Our Managing Director Graham Harbord was invited to attend in February 2016 before the SA Parliamentary Committee on Occupational Safety, Rehabilitation and Compensation, which is investigating mental health in the workplace. As an expert lawyer in Workers Compensation, Graham was asked by the Committee to provide advice about the new Return to Work Act and how it affects workers suffering mental conditions. He highlighted the different treatment accorded to workers with physical injuries as against those with mental injuries in the legislation and how workers with mental injuries are effectively discriminated against.

He noted at the outset that for a worker with a physical injury to be awarded compensation employment must be “a significant contributing cause” under the Act. However in the case of a psychiatric injury employment must be “the significant contributing cause”.

Graham spoke about a key concept in the Return to Work Act which defines a “seriously injured worker”. The new legislation provides that weekly payments will cease after two years from their commencement, unless a person is a seriously injured worker. A seriously injured worker will be entitled to continuing weekly payments after the cut-off date and to be reimbursed continuing medical expenses. A seriously injured worker must be assessed as having a permanent whole person impairment of 30% or more. However in making this assessment, impairment from a physical injury is to be assessed separately from a psychiatric injury. Furthermore no regard is to be had to mental harm arising from the physical injury in making that assessment. In addition, if a worker suffers a number of physical injuries arising from the same trauma then those injuries will all be combined together in assessing whether that worker attains the 30% threshold or not. However any psychiatric injury arising from the same trauma must be assessed quite separately and cannot be combined. Therefore if a worker suffers a severe physical injury and is assessed at having, for example, a 25% assessment of whole person impairment and that worker suffers a separate psychiatric injury and obtains an assessment of, for example, 20% whole person impairment, the assessment will not be combined or considered to be over the 30% threshold.

In addition Graham pointed out that the new Guidelines under the Return to Work Act for evaluating psychiatric impairment are very complex and it would appear that a person will need to be very severely impaired to obtain the 30% threshold. For example such a worker would probably have difficulty leaving the home, need basic support in activities of daily living such as in self-cleaning, be extremely anxious and depressed and be quite socially isolated. The opinion that our firm has obtained so far from various psychiatrists is that a person would have to be at a very debilitating level before they would reach that 30% threshold.

Graham gave an example of how the inequities of the new legislation might operate in practice. Johnston Withers acts for the Ambulance Employees Association which is the union representing paramedics. He said that for example a case could involve an ambulance officer who attends an incident, with a fellow paramedic, involving a patient who is high on ice. (Unfortunately he said, this is becoming a more frequent occurrence for paramedics). The first paramedic gets attacked by that patient and is stabbed and suffers severe physical injuries. He then subsequently suffers an adjustment disorder from the pain resulting from those injuries and depression. In that case all of the mental condition will be considered to be “consequential mental harm” and therefore not taken into account for the purposes of the 30% threshold test. However, if his colleague witnesses the attack and suffers no physical injury but does suffer severe post-traumatic stress as a result, that mental injury would be assessed as pure mental harm and would be capable of being assessed alone for the 30% threshold. Therefore the second paramedic may have an entitlement to continuing weekly payments whereas the first paramedic, if the physical injuries aren’t severe enough to reach the 30% threshold, has no entitlement to continuing weekly payments after the two year cut-off date.

To a reasonable person the distinctions set up in the Act are quite arbitrary and make no sense. The distinctions presume, for instance, that one can easily separate physical harm from mental harm. In reality a physical injury and resultant pain can have a very severe impact on a person’s mental condition. Current neurobiology also demonstrates that mental injuries themselves can change neurological pathways and lead to physical injuries.

Graham answered a wide range of questions from the Committee concerning his presentation. It is understood the Committee will be providing a report of their findings in the near future.

The official Hansard report of Graham’s submission is available here: Hansard – Johnston Withers Mental Health in the Workplace

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