A Linfox Armaguard worker who suffered a psychological injury after being held at gunpoint during a robbery was still partially incapacitated for work, despite covert footage showing him participating in daily activities and creative work.

Deputy President Pascoe of the Administrative Appeals Tribunal rejected the employer’s argument that the worker was no longer incapacitated for work or had been deceptive about his anxiety before the workplace incident and in his claims that he could not participate in everyday routines. The employer had relied on covert surveillance footage showing the worker doing tasks like driving, shopping and riding on a train, as well as a photo session in a park, which it alleged showed that he was able to be in public and performing routines. Pascoe DP found that the worker had been open about his previous anxiety. In relation to incapacity to work, Pascoe DP stressed that the footage could not show the worker’s state of mind and anxiety, but did show he was implementing strategies for coping, such as listening to music on the train, and engaging in creative work (acting and photography) that he could do at home and, on the medical evidence, suited his condition.

The medical evidence indicated that the worker had suffered from PTSD, anxiety and headaches, having heard screaming and gunshots during the robbery and believing his partner to have been killed at the time, and having been filmed by a bystander and the footage shown on television so that he believed he and his family would be followed and in danger. He had been terminated from his employment with Linfox because he had not found a job with the company that he could perform with his psychological condition and that was commensurate with his previous remuneration, as well as his belief that the employment relationship had broken down. There was also evidence that the knowledge that his employer had been following and observing him exacerbated his symptoms of hyperarousal at home and in public spaces. Pascoe DP held that the evidence showed that the worker still had a partial incapacity for work.

Having held that the worker still suffered from the accepted psychological injury, this was not however, a decision that the previous reasonable medical treatment continue indefinitely. Pascoe DP set aside the reviewable decision of 22 March 2019 and remitted the issues of determining how the medical benefit entitlements and weekly entitlements should be calculated from January 2019 (when the application for no entitlements was brought) to the respondent employer. Pascoe DP said it would be arbitrary for the tribunal to make such calculations in the absence of submissions and evidence, and that a number of decisions supported this approach.

Source: Hawk and Linfox Armaguard Pty Ltd (Compensation) [2021] AATA 800, 8 April 2021, accessed 14 April 2021.