July 3, 2017

Employer Liability & Workers Compensation | QLD

Gym program for psychological injuries? AAT says no!

It is common knowledge that exercise is beneficial to a person’s physical and mental wellbeing.  Despite the psychological benefits, to what extent does an exercise or gym program specifically constitute psychiatric treatment?  This issue was recently considered by the Administrative Appeals Tribunal (the Tribunal) in HSDR and Comcare.[1]

background

On 27 July 2006 the worker suffered a psychological injury as a result of perceived bullying and harassment in the course of her employment in an agency of the Commonwealth.  Comcare initially accepted that it was liable to compensate for the worker’s injury.

The worker subsequently applied to Comcare for compensation for a gym program, household services and treatment for bruxism (tooth grinding).  Each of these applications were rejected by Comcare. 

Comcare also decided that it was no longer liable to pay compensation to the worker because her psychological condition was no longer ‘contributed to in a material degree’ by her employment for the purposes of sections 4(1) and 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).[2]  Comcare considered that the worker’s current psychological condition was caused by various stressors unrelated to her employment.  These unrelated stressors included financial difficulties, childhood sexual abuse, relationship issues and PhD research commitments. 

The worker applied to the Tribunal for review of Comcare’s decisions.

Issues

The issues under review were:

  1. Was Comcare still liable to pay the worker compensation?  If so:

(a) Was the worker entitled to compensation for the cost of a gym program?

(b) Was the worker entitled to compensation for the cost of household services?

(c) Was the worker entitled to compensation for bruxism?

decision

The Tribunal found that:

  1. Comcare was still liable to pay compensation to the worker because the worker’s current psychological condition was still ‘contributed to in a material degree’ by her perception of her employment.  The Tribunal accepted that while the psychological condition was not completely explained by work-related issues, ‘material contribution does not require sole causality’.[3]   Ultimately, the Tribunal regarded the unrelated stressors as being ‘secondary’ to the original injury.
  2. The worker was not entitled to compensation for the cost a gym program because this did not constitute ‘medical treatment’ for a psychological condition for the purposes of section 16(1) of the Act.  The Tribunal found that while such a program would be of benefit to the worker (as it would any person), there was no evidence it would treat her psychological condition.
  3. The worker was not entitled to compensation for the cost of household services because there was a reasonable expectation that the worker’s husband would provide these household services.  The Tribunal did not accept that these household services would cause ‘substantial disruption’ to the employment and other activities of the worker’s husband for the purposes of section 29(2) of the Act.
  4. The worker was not entitled to compensation for bruxism because this injury did not ‘arise out of, or in the course of,’ her employment for the purposes of section 5A of the Act.[4]

 


[1]     [2017] AATA 779.

[2]     As the Act then was.

[3]     HSDR and Comcare [2017] AATA 779 at 60.  See also Gilkinson v Repatriation Commission [2011] FCAFC 133 at 5.

[4]     As the Act then was – the alleged bruxism injury arose in 2013.