Injury ‘arose out of employment’ after employment had ceased

Galea v Secretary, Department of Communities and Justice [2020] NSWWCC 253

The worker suffered an accepted psychological injury diagnosed as PTSD and Adjustment Disorder in the course of her employment with the employer.

The cause of the injury was a sustained assault from a patient and bullying and harassment from her co-workers. Due to these incidents, the worker ceased work with the employer in June 2014.

The worker saw one of the co-workers in question in a shopping centre on 24 December 2015. The sight of the former co-worker caused the worker to develop Takotsubo Cardiomyopathy (TCM). This was accepted as a heart attack injury under section 9B of the Workers Compensation Act 1987 (the 1987 Act).

The employer disputed liability on the basis that it was not a work related injury, employment was not a substantial contributing factor and employment did not give rise to a significantly greater risk of injury.

Determination / Reasons

In regard to whether the injury was work related, Arbitrator Cameron Burge noted that what is required to constitute an ‘injury’ is a sudden or identifiable pathological change. He observed that TCM is a cardiac condition caused by emotional and psychological stressors.

Although the injury occurred after employment had ceased, it was agreed that it was still possible for the injury to arise out of the worker’s employment. There must however be a causal connection as per the test in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).

In regard to causation, Arbitrator Burge considered that the factual background of the accepted psychological injury to be of relevance. The conduct of the worker’s colleagues was described as ‘utterly reprehensible’.

In the Arbitrator’s view, the medical evidence supports a finding that had the worker not been subjected to the actions of her co-workers that caused her psychological injury, then she would not have suffered the episode of TCM. As the worker experienced a sudden pathological change brought about by the work-related event of seeing her former colleague, the Arbitrator accepted the worker’s injury as a frank injury. The development of the TCM was considered separate to the accepted psychological injury. On the balance, the Arbitrator was satisfied that the worker’s injury arose out of her employment with the employer.

The Arbitrator then turned to the issue of whether the worker’s employment was a substantial contributing factor. The employer submitted that there were no work-related events that took place in the shopping centre on 24 December 2015. The Arbitrator disagreed and considered that had the worker not been employed with the employer, then her encounter with the former colleague would not be of relevance and therefore she would not have suffered the episode of TCM. Arbitrator Burge was satisfied that the evidence before him established a causal connection between employment and the development of TCM.

In regard to whether the nature of the worker’s employment gave rise to a significantly greater risk of suffering TCM, the Arbitrator again had regard to the worker’s interactions with her colleagues. Arbitrator Burge accepted that employment gave rise to a significantly greater risk of heart attack injury as the worker was placed in circumstances which exposed her to a higher risk of the assault and the conduct of her former colleagues. The medical evidence suggested that had these prior psychological stressors not existed, the TCM would not have occurred.

 

Implications

The circumstances in this matter are quite unique as the injury occurred over a year after the worker had ceased work with the employer. The decision in this matter highlights that an employer’s liability for injury does not necessarily end when an injured worker ceases employment with that employer. Should there be a sufficient causal connection, an injury can still be considered to have arisen in the course of employment well after employment had ceased.  We understand this decision is being appealed.