The Workers’ Compensation Rehabilitation and Other Legislation Amendment Bill 2013 (Qld) was passed on 17 October 2013 enacting significant changes to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘the Act’).
Much discussion has been made of the ‘5% threshold’, however, amongst the many changes to the workers compensation scheme included the amendment of the definition of ‘injury’ pursuant to section 32 of the Act for psychological or psychiatric disorders. Importantly, for psychiatric injuries the gateway to an entitlement to statutory workers compensation has been significantly modified with section 32 now providing:
For a psychiatric or psychological disorder – the employment is the major significant contributing factor to the injury1 [emphasis added]
The genesis of ‘the major’ significant contributing factor can be found in section 34(1) of the 1996 Act in its original form which required employment to be ‘the major significant factor causing the injury’.
There is likely to be utility in revisiting how the Court interpreted section 34(1) of the 1996 Act. In WorkCover Queensland v Elliot Anderson2 the Industrial Court considered whether employment was ‘the major significant factor’ causing a back injury. This case involved an argument that there was an initial injury but sometime later the worker sustained further injury whilst playing football. The employer and WorkCover contended this football
incident must have had some causative influence on the development of the worker’s back condition. The Court noted the medical evidence did not establish that playing football caused an identifiable role in the development of the worker’s condition. The Court noted
‘over the years the complaints of pain in the lower back were all related to employment activity and the employment activity causing insults to the spine was more constant and prolonged than the [worker’s] activity playing football’.3
The Court noted the evidence pointed to the worker’s back being subjected to significant stressors and strains due to heavy employment and therefore found that employment was ‘the major significant factor’ causing injury. The Court did not descend into an analysis of what ‘the major’ significant factor meant other than applying its ordinary definition.
The case of Stewart v WorkCover Queensland4 involved an appeal against the decision of an Industrial Magistrate upholding the decision of WorkCover that the worker was not entitled to compensation under the 1996 Act on the basis that his employment was not the ‘major significant factor’ causing a psychiatric injury.
There the worker lodged an Application for Compensation asserting that he had sustained ‘anxiety’ in the course of his employment as a garbage truck operator. The worker’s argument was that his truck was defective and would spill glass such that he became concerned that children would come to harm and his complaints to the employer were not heeded. The evidence revealed that the worker became ‘angry’ towards the employer for not responding to his complaints. Psychiatric evidence suggested he did not have any psychiatric disability or disorder but rather that there was a ‘workplace dispute’. The Court noted that because of the initial rejection of his compensation claim the worker did not return to work and became financially stressed.
The Court noted it was important to ascertain ‘when the worker suffered a psychiatric condition and when it began’. The Court noted the medical evidence suggested that when the Plaintiff ceased work in 1997 he was not likely to have been suffering from an ‘injury’ but within a year of ceasing employment he may well have suffered an ‘injury’. The Court held:
The onus then was on the [worker] of establishing that the condition manifest in January 1998 was not only something which arose out of the course of his employment, but that his employment was “the major significant factor causing the injury”. In order to discharge that onus the [worker] would have to demonstrate that factors operating on his well being after July 1997 were not of such significance as to deny to his employment which ceased in early June 1997 the description of being “the major significant
factor causing the injury”.5 [emphasis added]
The Court noted the Industrial Magistrate’s finding of fact that the worker’s ‘anger and conflict with supervisors’ combined with the rejection of his workers’ compensation application and financial hardship arose after he ceased work and it was these factors which had brought about the worker’s psychiatric condition. The Court concluded:
The critical findings are that at the time the [the worker] ceased work he was not suffering from an “injury”, but was angry with his employers, because of their perceived reluctance to deal with a situation of concern to the [worker]. Employment ceased not because of an “injury” but because of the [worker’s] anger with his employer – an industrial dispute. Because he was out of work and therefore not earning, and because his claim for compensation was rejected, over a period of time he developed a psychiatric condition which was variously described by those experts who examined him in or about January 1998. But the evidence does not establish that his psychiatric condition in January 1998 was caused by his employment which ceased in June 1997 nor that (if it be an “injury”) the employment is a major significant factor causing the injury.6 [emphasis added]
The decision of Simpson v Q-Comp 7 involved an injury over a period of time from 1996 to 2008 therefore spanning the 1996 Act, the July 1999 amendments to the 1996 Act and the Workers’ Compensation and Rehabilitation Act 2003. The issue before the Industrial Magistrate was primarily whether employment was ‘the major significant factor’ causing injury for the period 4 March 1996 until 30 June 1999 and/or ‘a significant contributing factor’ for the period from 1 July 1999.
There the worker had allegedly sustained an aggravation of degenerative changes in his knees, shoulder and back as a result of his duties as a marine surveyor. The Court accepted the worker’s evidence that his duties involved a significant degree of physically demanding work. The Court was influenced by the medical evidence as to as to the relationship between employment and injury during the period March 1996 to 1 July 1999: Dr Steadman, Orthopaedic Surgeon, was preferred in his opinion that degenerative changes, prior work duties overseas for another employer and a prior injury in 1992 were ‘the major significant contributing factors’ rather than duties performed for the employer during this period. The Court also accepted his evidence that during the period from 1999 employment was ‘a’ significant contributing factor.
This case demonstrates the significant effect of ‘a’ as opposed to ‘the’ in that the onus of proof on the worker in the
period 1996 to 1999 was much higher.
What of the situation involving multiple stressors in psychiatric injuries? In Pleming v Workers’ Compensation Board of Queensland8 the Court held:
“There is obviously at least one other contributing factor and on the evidence before the Magistrate that was certainly the major factor. There could be room, in theory, for another significant factor.9”
There will always be cases involving multiple significant contributing factors. The inclusion of the words ‘the major’ invokes a comparison of one ‘significant contributing factor’ to another such factor. The question is yet to be answered whether there can be say three significant contributing factors, expressed on a percentage basis, two of
say 20% and a third of 60%, in which case the third is the ‘major’ significant contributing factor.10
In WorkCover Queensland v Heit11 the worker sustained a psychiatric disorder as a result of harassing conduct by a co-worker, however, she also had a number of other life stressors. President Hall on appeal found employment was ‘the major significant’ cause of the disorder and noted:
There was the evidence of Ms Heit about the conduct towards her of a Ms Debbie James which, if believed, could rationally lead one to believe that Ms James's conduct had been the cause of the disorder. There was the evidence of Ms Heit's husband that as time had gone on, Ms Heit's employment, and in particular the conduct of Ms James, had become the topic of conversation. There was evidence that immediately before Ms Heit's admission to hospital, she had begun to confuse her husband with Ms James and to refer to him as "Debbie". Mr Rhead of Counsel who appears for WorkCover Queensland points to a variety of other stresses, eg the death of Ms Heit's father, the death of her mother, and the departure of a daughter to Townsville. However, there was medical evidence that Ms Heit had grieved appropriately both at the death of her father and at the death of her mother, and that the lack of temporal connection, (her father died in 1991, her mother in 1996) suggested that those stresses were not relevant to a psychiatric condition. There was medical evidence that Ms Heit had not appeared emotional when discussing the departure of her daughter. In those circumstances it seems to me that the Industrial Magistrate was right to put those stresses aside12
In Lackey v WorkCover Queensland13 the worker sustained a primary physical injury and then sought to obtain a ‘damages certificate’ to pursue a secondary psychiatric injury, however, this was declined by WorkCover on the basis that it was unrelated to the physical injury. The Industrial Court held that the 1996 Act’s requirement that employment was the ‘major significant factor’ necessarily meant that employment had to be proven or established as ‘the significant factor’ to the development of the condition. There President Hall held:
Plainly if the employment was not a significant contributing factor the employment could not be the major significant contributing factor.14 [emphasis added]
It is clear from review of decisions related to the 1996 Act and ‘major significant contributing factor’ that each case will very much turn on its own facts and will require a balancing of findings of fact and consideration with respect to medical evidence as to the extent to which a ‘significant factor’ has contributed to a psychiatric injury.
Clearly the mutual intent with respect to the 1996 Act and the amendments of 2013 was to exclude those injuries which have only a minimal work related component and require something more than ‘a significant’ connection to employment.
What does that mean for public liability respondents? The gateway for a Plaintiff to pursue a claim against an employer for psychiatric injury is now more difficult due to the combination of the new test of ‘the major’ significant contributing factor and “‘the threshold”. This in turn may lead Plaintiffs to consider pursing other potential respondents in what may have otherwise been multi-party litigation.