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Proving what you cannot see – Workers’ Compensation and Post-Traumatic Stress Disorder (PTSD)

Woman suffering from PTSD

Nightmares, depression, anxiety, insomnia, an unnerving sense of danger: these are just some of the symptoms experienced by people who suffer from post-traumatic stress disorder. Being involved in a traumatic situation at work can make us feel scared, helpless and embarrassed. Not having the acknowledgement and support needed from your employer (or their WorkCover insurer) in order to move forward and tackle these symptoms is completely unjust, explains Attwood Marshall Lawyers Compensation Law Senior Associate, Lisa Robertson.

Introduction – what is PTSD?

Although the term Post Traumatic Stress Disorder would seem to be relatively self-explanatory, the condition has had a checkered history in terms of the formal diagnostic criteria and symptoms that need to be evidenced before a formal diagnosis of the condition was made by treating psychologists and/or psychiatrists.  However, the diagnostic criteria and symptoms are set out in the 5th Edition of the Diagnostic & Statistical Manual of Mental Disorders (“DSM-5”).  The following are the formal diagnostic criteria that need to be met in order to be diagnosed with PTSD:-

CRITERION A

You were exposed to one or more event(s) that involved death or threatened death, actual or threatened serious injury, or threatened sexual violation. In addition, these events were experienced in one or more of the following ways:

  • Directly experiencing the event;
  • Witnessing the event as it occurred to someone else;
  • You learned about an event where a close relative or friend experienced an actual or threatened violent or accidental death;
  • Experiencing repeated exposure to distressing details of an event, such as a police officer repeatedly hearing details about child sexual abuse.

The relevant symptoms that you need to experience or are associated with the traumatic event are contained in Criterion B:

You experience at least one of the following intrusive symptoms associated with the traumatic event:

  • Unexpected or expected reoccurring, involuntary, and intrusive upsetting memories of the traumatic event;
  • Repeated upsetting dreams where the content of the dreams is related to the traumatic event;
  • The experience of some type of dissociation (for example, flashbacks) where you feel as though the traumatic event is happening again;
  • Strong and persistent distress upon exposure to cues that are either inside or outside of your body that is connected to your traumatic event;
  • Strong bodily reactions (for example, increased heart rate) upon exposure to a reminder of the traumatic event.

There are further criteria relating to frequent avoidance of reminders in Criterion C as well as additional criteria such as:

  • Negative changes in thoughts (Criterion D);
  • Changes in arousal (Criterion E);
  • Symptoms lasting for more than a month (Criterion F);
  • Symptoms bringing about considerable distress and/or interfering greatly with a number of different areas of your life (Criterion G); and
  • Symptoms not due to a medical condition or some form of substance abuse (Criterion H).

The formal diagnosis for PTSD under DSM-5 requires you need to meet the following:-

  • Criterion A;
  • One symptom or more from Criterion B;
  • One symptom or more from Criterion C;
  • Two symptoms or more from Criterion D;
  • Two symptoms or more from Criterion E;
  • Criterion F through H.

To see the complete list of DSM-5 Diagnostic Criteria for PTSD, click here.

As you can see from the above, the area is a very complex and the formal diagnosis criteria for the condition needs to be confirmed by medical practitioners.  Getting to the bottom of these issues can often be a very difficult process for the worker who has been exposed to some traumatic event and then must deal with the process of a formal diagnosis confirmed by their treating doctors prior to being entitled to compensation.

The trouble with claiming workers’ compensation for any psychological injury or mental illness is that it is difficult to prove what you cannot see.  Mental illness is often insidious. It is not as obvious as a physical injury, but it can have an equally devastating effect on the health and work capacity of those suffering from it. PTSD is a particularly difficult and controversial injury to diagnose, with even the people who suffer from it being unaware that they suffer from this condition.

The condition is often exacerbated by employers who are sceptical that the injury is genuine or has been caused by a work-related incident, coupled with a lack of experience in dealing with this type of condition. When you add the further layer of dealing with an equally sceptical and often insensitive WorkCover or insurance company claims officer, or an in-house workers compensation officer, all the ingredients are there for an explosive outcome.

Increase in WorkCover psychological injury claims

Studies have shown that not only has there been a marked overall increase in general psychological conditions suffered by Australians, there has also been a corresponding increase in work related psychological injury claims These types of claims have also been exacerbated by the onset of COVID-19 and the resultant problems this has caused in many workplaces. However, the focus of this article is relating to injured workers who suffer from PTSD.  We have certainly noticed an increase in these types of claims and part of the reason for this is that people are more willing to acknowledge they are suffering from the symptoms and seek help from their treating general practitioner.

In many cases the injured worker suffering from PTSD has no awareness of the impact that it is having on their life and the lives of their family members. Quite often it is not until co-workers, friends or family members notice the change in behaviour and insist that the injured worker obtain treatment.  There is also a higher public awareness of mental illness generally, whereas historically many people were too embarrassed or thought that what they were suffering from would correct itself in a short period of time.  Many injured workers also “soldiered on” and exhibited the traditional Australian quality of stoicism.  This conduct usually delays the inevitable and in many cases exacerbates the underlying psychological condition.

Many people are unaware that apart from any potential worker’s compensation claim associated with a work psychological injury, you are entitled to a mental health plan which is covered by Medicare.

Any worker who suffers a traumatic incident at work or travelling to or from work should ensure that they consult their general practitioner and obtain treatment as soon as possible. There are many different kinds of incidents which can cause people to suffer from PTSD.  It could involve some form of bullying or harassment, physical assault or witnessing some form of traumatic or distressing event.  As long as the triggering condition is related to your work, you are entitled to lodge a worker’s compensation claim which will cover you for any reasonable treatment costs that you incur and pay a percentage of your usual wages in the event that you are unable to work as a result of your injury.  There may also be an entitlement to a lump sum payment if your condition is permanent.  You may also be entitled to bring a common law claim in negligence against your employer.

We strongly recommend you obtain medical treatment as soon as possible and legal advice about whether you have a workers’ compensation claim. There are strict time limits that apply to these claims, so you need to act as soon as possible. 

Read more: Policewoman wins eight-year insurance battle for TPD claim after suffering PTSD
Read more: Manus Island Detention Centre social worker wins compensation after sexual assault
Read more: WorkCover Death Benefits and Common Law Negligence Claims
Read more: Legal action for mining worker who suffered severe psychiatric injury
Read more: What is a TPD Benefit?

Workers most at risk of suffering psychological injuries in the line of work

Emergency services personnel are particularly vulnerable to psychiatric injury. These include firefighters, police officers and paramedics. Emergency services personnel are regularly exposed to traumatic and life-threatening situations in the line of duty.

These frontline workers or ‘first responders’ often suffer from Post-Traumatic Stress Disorder (PTSD), a mental health condition causing the sufferer to re-experience their trauma through symptoms such as distressing nightmares, flashbacks, and intrusive thoughts or recollections of events. The condition can cause a plethora of other mental, physical and social symptoms which affect a worker’s ability to function generally, let alone perform the day-to-day tasks of their employment.

A report published in 2018 by Beyond Blue titled Answering the Call revealed survey results indicating that first responders suffer a higher rate of mental health conditions when compared to the general population.  The survey also indicated that claims for work-related psychological injuries were 10 times higher in first responders than for those of the general workforce.

However, despite the prevalence of first responder PTSD in the workforce, sufferers have traditionally encountered problems proving that their injury was caused by their employment.

It can take years of traumatic exposure before the condition onsets. With delayed onset, it can make it very difficult to establish causation for the purposes of recovering workers’ compensation benefits and improve treatment outcomes.

What legislation is in place to support workers who suffer from PTSD?

States and Territories such as Tasmania, the Northern Territory and Queensland have either enacted, or are aiming to enact, presumptive legislation providing a reversal of the onus of proof for first responders and other eligible workers. What this means is there is now a rebuttable presumption that a worker’s employment substantially contributed to their PTSD.  It is for the employer to prove otherwise.

Tasmania blazed the trail with the enactment of the Workers’ Rehabilitation and Compensation Amendment (Presumption as to Cause of Disease) Act 2019 which inserted section 28A into the Workers’ Rehabilitation and Compensation Act 1988.  Section 28A(2) provides that:

“… where a relevant worker suffers an injury that consists of post-traumatic stress disorder, the worker’s employment is, in the absence of evidence to the contrary, taken to have contributed to a substantial degree to that injury.”

More recently, the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2020 was re-introduced to the Queensland Legislative Assembly in November 2020 after an identical Bill of the same name lapsed.  The Bill’s purpose is to improve the workers’ compensation experience and mental health outcomes for first responders and other eligible employees or relevant volunteers, who are diagnosed with PTSD.

The Bill is intended to redress the difficulties employees encounter with proving their injury and facilitate access to the workers’ compensation scheme.

At the date of writing, the Bill has been referred to the Education, Employment and Small Business Committee (‘the Committee’) of the Queensland Parliament for a public hearing.

The Queensland Law Society has provided some feedback regarding the Bill to the Committee. The Law Society’s concerns included uneasiness about the reversal of the onus of proof as a cornerstone of legal principle, the lack of evidence justifying the need for the breadth of the Bill and the broad range of workers covered, and the viability of the Queensland workers’ compensation scheme if the ‘floodgates’ are opened.

What about workers from other industries?

The legislation may prove unfair for those classes of workers who suffer work-related PTSD and are not protected under the prospective Act because they are not first responders or eligible employees or volunteers.

For those workers, the onus will remain on them to prove that their employment was the substantive cause of their PTSD. They are often required to identify and endlessly recount their traumas to claims officers and WorkCover panel doctors in order to prove a work-place injury. This can have the effect of retraumatising them.

A poignant example would be workers such as the Dreamworld electrician and maintenance technician who suffered PTSD  due to the Thunder River Rapids ride tragedy in 2016.  The worker jumped into the water to help the victims, remove them from the water and cover them from public view.

Long after the incident, he continued to experience flashbacks and nightmares from the horrific event which took place.  It is unlikely that he would have the benefit of presumptive legislation as he was an employee of a company and would not come under the umbrella of the prospective Queensland Act.

Although this worker’s trauma can be pinpointed to one horrific event and causation is easier to establish, he may well be re-traumatised by the continuous need to recount his experience to insurers in order to establish causation and prove the reasonable necessity of treatment.

PTSD is a terrible affliction that affects swathes of workers, irrespective of whether they are emergency services personnel or not.

While presumptive legislation may benefit certain classes of workers who have a specific type of psychiatric injury, there are many who will be left out in the cold and retraumatised by the hurdles of establishing a work injury in an adverse system.

We need to see further changes to legislation so that these considerations can extend to all workers, no matter the industry they work, who may experience exposure to similar traumas and develop significant psychiatric conditions.

How can Attwood Marshall Lawyers help?

Each state and territory have different schemes in relation to workers’ compensation, which means the claims process is slightly different depending on the situation and your location.

Attwood Marshall Lawyers are here to support you through the entire process. With extensive experience in both Queensland and New South Wales Workers’ Compensation Schemes, we understand the magnitude of making a claim in this area and how confronting it can be.

No matter the industry someone works in, we believe anyone who suffers PTSD or other psychological conditions as a result of a traumatic event that took place within the work environment should be entitled to the compensation and treatment they deserve in order to try to piece their life back together.

Read more: New laws to support first responders battling PTSD

If you or anyone you know needs help:

If you have been impacted by traumatic events performing your duties at work, you may be able to make a claim for compensation. Contact our Compensation Legal Department on 1800 621 071 or you can discuss your matter directly with Department Manager Kelli Costin by phoning 07 5506 8220 or email kcostin@attwoodmarshall.com.au

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Lisa Robertson

Lisa Robertson

  • Senior Associate
  • Compensation Law
  • Direct line: 07 5506 8261
  • Mobile: 0412 301 956