Whether you would be compensated for a psychiatric injury could depend on this Supreme Court Decision

There has been significant interest in a worker’s compensation case involving a teacher who was awarded damages for psychiatric injuries resulting from the volatile environment of her classroom.

The details of the claimant’s ordeal however have not been the focus of the interest. Instead, it is the wording of a particular provision relating to compensability of psychiatric injuries that has taken this matter all the way to the Supreme Court. 

The case in question is Van Hattem v The Department of Education. At first instance, the South Australian Employment Tribunal (SAET) held that the claimant’s employment was “the significant contributing cause” of her psychiatric injury and was therefore eligible for compensation.  

The Department for Education appealed the decision before the Full Court of the SAET, arguing that the Judge in the original matter erred in his interpretation of the phrase “the significant contributing cause” when finding that the claimant’s employment was the significant cause of her psychological injury.

The Department contended that a psychiatric injury should only be compensable if the claimant’s employment contributed to the injury to a greater degree than the combination of any other contributing causes to the injury. The Department argued that the Judge instead interpreted the terminology “the significant contributing cause” as meaning more than any other individual contributing cause.

Think of it as a pie graph. One interpretation says that if you have a pie graph representing all the factors contributing to a psychiatric injury (eg work, pre-existing illness, relationship issues), the biggest slice of that pie is the significant contributing cause. The other interpretation, argued by the Department, maintains that only if a slice is more is than half of the whole pie can it be considered the significant contributing cause. 

In any case, the judicial officers on appeal determined that this question did not need to be answered, as they concluded that the employment was the only significant contributing case of the claimant’s injury, and other stressors that may have impacted her mental health were in fact triggered by the difficulties she faced in her employment. 

The Department then appealed to the Supreme Court, where the matter currently sits, awaiting a decision.

Chief Justice Chris Kourakis was reported in The Advertiser as saying: “It seems to me that something has to be read in to make grammatical sense of this, and that is either the word ‘only’ or the word ‘most’.”

This suggests that if an extra word was added to the phrase “the significant contributing cause”, it would have made the intent of the provision much clearer.

The Supreme Court decision will likely have significant consequences for the Return to Work scheme. If the Department wins the appeal, the test for compensability of psychiatric workplace injury will be particularly difficult to meet.

Regardless of the outcome, the Society has maintained that there is no good reason why psychiatric work injures should be treated differently to physical injures under the Return to Work Act.

For a physical workplace injury to be compensable, the employment of the injured person needs to be “a” significant contributing cause of the injury. For psychiatric injuries, the person’s employment must be “the” significant contributing cause. This puts the bar considerably higher for workers who suffer psychiatric injuries.

The cruel irony is that, on average, it takes psychiatrically injured workers longer to return to the workforce than physically injured workers with commensurate levels of impairment.

The law also prevents a person who suffers a work-related psychiatric injury from receiving any lump sum compensation for pain and suffering, but a person with a physical work-related injury would be eligible for a lump sum.

Denying psychiatrically injured workers the same rights as physically injured works is unfair, regressive, and at odds with the purported objective to help people return to the workforce.