August 19, 2020
There’s no doubt 2020 has been relentless on our first responders. Through fires, flood, drought, and now COVID-19, our some 80,000 first responders have held a strong front in an unprecedented state of disaster.
A survey performed by Beyond Blue in 2018 aptly named “Answering the Call” found first responders making claims for psychological injuries at ten times the rate of the average Australian. It’s facts like these that are driving the motivation for the Worker’s Compensation and Rehabilitation and Other Legislation Amendment Bill.
Put forward to Parliament on 12 August 2020; the Bill highlights the seemingly significant barrier in the determination phase of PTSD claims; in particular, the legislative test for injury.
In a bid to overcome delays in the provision of necessary treatment, the Bill suggests a colossal change to the onus of proof – proposing the presumption of PTSD being caused by a first responder’s line of work.
This is a stark contrast to the current process, whereby a claimant must prove their PTSD is due to their line of work.
This ‘presumption of injury’ is just one of the multiple changes proposed in the Bill; but, arguably, the most impactful.
1. Definition of ‘first responder’
Now defined as ‘a worker, or a relevant volunteer’ whose employment requires them to respond to incidents –
- That are life-threatening or other traumatic; and
- For which time may be critical to prevent actual or potential death or injury to persons, or to prevent or minimise damage to property or the environment.
This would include workers such as ambulance officers, child protection officers, corrective services officers, fire service officers, SES members, rural fire brigade members, volunteer firefighters/wardens, police officers, youth justice officers, doctors and nurses in Emergency, Acute Care, Critical Care and High-dependency care.
It is also intended to apply to ‘…an occupation or profession performed in the private sector that corresponds to an occupation or profession similar…’.
2. Definition of ‘eligible employee’
Now defined as the departments under which the Ambulance Service, Child Protection, Corrective Services, Fire and Emergency Services, Police Service and Youth Justice are administered, whose employment:
- Requires the employee to experience repeated or extreme exposure to the graphic details of traumatic incidents by –
- Attending the scenes of traumatic incidents; or
- Experience traumatic incidents as they happen to other persons; or
- Investigating, reviewing, or assessing traumatic incidents that have happened to other persons.
3. Definition of ‘traumatic incident’
Now defined to include an incident that exposes an employee to, or to the threat of, death, serious injury or sexual violence.
4. The onus of proof and the ‘presumption of injury’
There is a proposed change of the onus of proof for the root of the injury, whereby the above outlined workers can have a presumed diagnosis of PTSD due to their line of work. This reverses the onus of proof, meaning to reject a claim the insurer/employer must prove that –
- The PTSD did not arise out of, or in the course of, the person’s employment as a first responder or an eligible employee; or
- The person’s employment as a first responder or an eligible employee was not a significant contributing factor to the disorder.
5. Exclusion of the ‘reasonable management action’
s32(5) of the Works’ Compensation and Rehabilitation Act does not apply. This states that –
- Injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances –
- reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment.
6. Onus of psychiatric examination
If the Application for Compensation is made for PTSD by a first responder/eligible employee without medical evidence of a diagnosis, the insurer must arrange the required psychiatric examination and report at its cost.
What This Means For You
The Bill was tabled in Parliament on 12 August 2020 and is yet to be enacted. If passed into law, the legislative changes will have significant implications for Employers of first responders and defined workers exposed to single traumatic events or cumulative traumatic exposure.
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Unsure how these changes will impact you? Contact Principal, Carl Moseling, to be walked-through what these proposed changes mean for you.