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Unreasonable management action caused psych injury

A tribunal has decided that a worker is entitled to compensation.
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Unreasonable management action caused psych injury

Unreasonable management action caused psych injury

27 October 2020

By Gaby Grammeno

A tribunal has decided that a worker is entitled to compensation for a psychological injury resulting from administrative action that was neither reasonable nor taken in a reasonable manner. The tribunal’s senior member reached this conclusion despite his view that the injured man was prone to exaggerating the impact of what happened, with his ‘florid account’ of the events.

The insurer was also ordered to compensate the worker for the temporary aggravation of a pre-existing shoulder condition, after an incident involving a lift door.

The incident

The injured worker was employed by the Department of Home Affairs. In the second half of 2015 he began to experience left sided shoulder and neck pain which led to medical treatment and periods off work.

Initially the condition was regarded as unrelated to his work and therefore non-compensable, but when the condition deteriorated, he applied for worker’s compensation.

The following year, he worked restricted hours – three hours a day, three days a week. In November 2016 he was referred by his employer to an occupational physician, who certified him fit for full time work. The employer directed him to return to work full time, despite the fact that he’d been on reduced hours for over 15 months and had little time to consider or respond to the report on which the direction was based.

His return to work was subsequently described as ‘an abject failure’. He felt he’d been forced to work despite his limitations and ongoing shoulder and neck pain, and his employer would not allow him to take sick leave. As a result, he’d had to work in pain or under the influence of medication that made him drowsy.

He felt overloaded with jobs, and on one occasion fell asleep. When issues were raised about his work performance, he felt humiliated by how he was treated by his manager in the presence of other workers and junior colleagues. He received warnings and was put on a performance plan. His psychological condition escalated from adjustment disorder through clinical depression into a major depressive disorder.

In April 2017 he was struck by lift doors as they were closing. He said this had exacerbated symptoms from his underlying neck and shoulder conditions.

Following this incident, his mental state deteriorated to a point where the occupational physician who found him fit for full time work the previous year found him unfit for any work in July 2017.

Over time, he lodged five claims with Comcare – two of them related to the shoulder and neck condition he experienced in 2015, two to injuries he attributed to having had the lift door close on his shoulder, and one related to the psychological condition which developed after his return to work in 2017.

The insurer denied liability for all five claims, and the worker then applied to the Administrative Appeals Tribunal of Australia to review these decisions.

In the tribunal

There was no dispute that the man had problems with his shoulder and neck. The question was whether it was compensable or simply a constitutional condition which failed to qualify for compensation.

The tribunal also needed to decide whether the lift incident had caused an injury. The worker claimed the lift had ‘shattered his shoulder’, but the insurer contended that the incident was so trivial it could not have resulted in an injury.

As he found the worker inclined to exaggerate, the tribunal’s senior member based his factual findings on the medical notes and opinions of a psychologist, a physiotherapist and no less than 13 medical practitioners, including two GPs, four occupational physicians, two orthopaedic surgeons, a consultant neurologist and two consultant psychiatrists.

The senior member did not accept the insurer’s submission that the man’s condition resulted from reasonable administrative action taken in a reasonable manner.

He noted four matters in which he found the employer’s actions unreasonable – they’d directed the man to return to full time work after 15 months on reduced hours, and they’d chosen to treat a key medical report as effectively prohibiting him from taking any personal leave at all in relation to his injury, selectively ignoring some parts of it. Further, they failed to put the views of the man’s doctors to the occupational physician who was central to their decision-making, and they used the fact that he fell asleep at work as grounds for performance management.

The tribunal found that the employer’s treatment had significantly contributed to the adjustment disorder and major depression he’d experienced in 2017.

The tribunal overturned the insurer’s decisions to deny liability for temporary aggravation of the worker’s shoulder condition when the lift door closed on him, and found he is entitled to compensation for adjustment disorder and major depression.

The bottom line: Return to work after injury must be carefully managed to ensure it is safe, with due regard given to medical recommendations.

Read the judgment

Samy and Comcare (Compensation) [2020] AATA 3850 (2 October 2020)

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