Legislation update

First responder PTSD presumed work related

By Anna Hendry / 17 August 2020
3 min.
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Worthwhile read for: first responders, hr professionals

The real heroes of the last twelve months have undoubtedly been our first responders. Through bushfires, floods and now COVID-19, first responders have faced devastating and often traumatising situations. It is the exposure to those situations and the psychiatric injury that often flows from that exposure that is the focus of the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill. This Bill seeks to reduce the difficulties in proving entitlement to workers’ compensation benefits by reversing the onus of proof for compensation for first responders diagnosed with Post Traumatic Stress Disorder (PTSD). If the Bill is passed in its current form, there will be a presumption that PTSD diagnosed in certain first responders was caused by their employment.

A survey conducted by Beyond Blue in 2018 found that first responders lodged compensation claims for mental health or psychological injuries at a rate ten times higher than the adult Australian workforce. The proposed amendments recognise that the cumulative exposure to trauma in first responders makes it difficult for those workers to pinpoint a single event that contributed to their condition, which can result in delays and unnecessary investigations during the claim acceptance process and consequent delays in the provision of necessary treatment. 

Proposed amendments

Key changes to the WCRA:

  • Meaning of first responder: a person employed as a worker or volunteer whose employment requires them to respond to incidents that are life-threatening or otherwise traumatic and for which time may be critical to prevent potential death, injury or minimise environmental or property damage.
  • Meaning of eligible employee: a person employed as a worker or volunteer whose employment requires them to experience repeated or extreme exposure to traumatic incidents, including death, serious injury or sexual violence. 
  • Presumption of injury: a person who is diagnosed by a psychiatrist as having PTSD and was employed at any time before the diagnosis as a first responder or eligible employee is taken to have an entitlement to compensation for that injury, unless it is proved that it did not arise out of the course of their employment or their employment was not a significant contributing factor. 
  • Examination of claimants by psychiatrist: if a person who has been employed as a first responder or eligible employee makes an application for compensation for PTSD and has not previously been diagnosed, the insurer must arrange for the claimant to be examined by a psychiatrist. 

Key changes to the WCRR:

  • Definition of first responders and eligible employees: ambulance, fire and police officers, volunteer firefighters, youth justice staff members, child safety officers, corrective services officers, doctors or nurses employed in trauma, acute, critical or high dependency care, and other workers employed in first responder agencies. 

Conclusion

The Bill has been referred to the Education, Employment and Small Business Committee. We will keep you up to date regarding the progress of this Bill. 

For further information or discussion, please contact a member of our Insurance team.
 

Authors
Anna Hendry
Partner
Anna is a Partner who advises exclusively in insurance litigation, acting on behalf of major public liability insurers, workers’ compensation insurers and self-insurers, compulsory third party insurers and professional indemnity insurers.

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