First responder rights

On 12 August 2020, the Workers’ Compensation and Rehabilitation and Other Legislation Bill 2020 was introduced to the Queensland Parliament.

The Bill proposes amendments to the Workers’ Compensation and Rehabilitation Act 2003 (Act) to provide presumptive benefits for ‘first responders’ and ‘eligible employees’ diagnosed with post-traumatic stress disorder (PTSD) by a psychiatrist in accordance with DSM-V.

The Bill, if passed, will ‘provide an alternative claims pathway for first responders who are struggling to cope with PTSD that presumes they have a work-related injury, unless it is proved their injury was not caused by work‘. The presumptive laws will not change a worker’s entitlement to compensation. However, the presumptive laws will ‘provide a different pathway for certain claims to access the scheme by reversing the onus of proof‘. A first responder and/or eligible employee diagnosed with PTSD will be deemed to have a work-related injury ‘unless there is evidence to the contrary‘.

The new s36EB of the Act will provide a person is employed as a ‘first responder’ if:

1. He/she is a worker or volunteer employed in an occupation or profession prescribed by Regulation; and
2. His/her employment requires him/her to respond to incidents:
   1. That are life threatening or otherwise traumatic; and
   2. 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.

The prescribed occupations and professions will be listed in schedule 6A of the Workers’ Compensation and Rehabilitation Regulation 2014 (Regulation) and includes an ambulance officer, a fire service officer, a member of the State Emergency Service, a member of a rural Fire Brigade, a volunteer firefighter, a police officer and/or a doctor or nurse employed in either emergency and trauma care, acute care, critical care and/or high-dependency care.

The new s36EC of the Act will provide a person is employed as an ‘eligible employee’ if:

1. He/she is a worker or volunteer employed by or in an entity prescribed by Regulation; and
2. His/her employment requires him/her to experience repeated or extreme exposure to the graphic details of traumatic incidents by:
   1. Attending the scenes of traumatic incidents; or
   2. Experiencing traumatic incidents as they happen to other persons; or
   3. Investigating, reviewing all assessing traumatic incidents that have happened to other persons.

A ‘traumatic incident’ is defined as an incident that exposes a person to, or to the threat of death, serious injury or sexual violence.

The prescribed employers will be listed in schedule 6B of the Regulation and includes a person employed by the department in which the Ambulance Service Act 1991 is administered, the Corrective Services Act 2006 is administered, the Fire and Emergency Services Act 1990 is administered and the Police Service Administration Act 1990 is administered.

If passed, the insertion into the Act of presumptive legislation for first responders and/or eligible employees with PTSD will accord with similar legislative provisions in Tasmania and the Northern Territory, which provide presumptive benefits to first responders, diagnosed with PTSD.

This article was written by Graeme Traves, Partner, Tony Scott, Partner and Kyle Norton, Special Counsel.