Psychological injuries can be the hardest of injuries to prove. Often they involve a number of events over a period of time and evidence is limited as it is often one person’s word against another. Even when there are witnesses, these people are reluctant to become involved due to concerns for the repercussions that may occur.
At Taylor & Scott we therefore recommend that when reporting psychological injuries that result from multiple incidents, all incidents are reported rather than just the last event, which in many cases is the straw that broke the camel’s back. It is also suggested that workers keep a diary about the incidents as this information can be a useful reference later on.
Psychological injuries are also the only type of injury for which the employer has a defence against the claim. This defence is that if the injury is “wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment, dismissal or the provision of employment benefits to workers”, then compensation is not payable. Therefore workers who have suffered a psychological injury not only need to prove that an injury has been suffered as a result of their employment but also that this injury is not the result of reasonable action on behalf of the employer. If both of these aspects cannot be established, then liability will not be accepted and the worker will not be entitled to compensation benefits.
Employers and workers compensation insurers will rely on this defence at every chance they get. It is the number one reason as to why claims of this nature are denied and a significant amount of time and money is spent disputing whether or not the actions of the employer fall within what is considered to be reasonable action.
When pursuing a claim for a psychological injury, it is also important to ensure that the correct terminology is used. A worker cannot make a claim for “stress” or a “stress condition” and a doctor cannot use “stress” or “stress condition” as a diagnosis. This is not an accepted medical terminology and is not considered an injury. In addition, a worker cannot report an injury as bullying or harassment. Whilst this may be the cause of the injury, it is not the actual injury. Instead, the nominated treating doctor will need to make a diagnosis based on the DSMV 5 Guide which will include conditions such as anxiety, depression, adjustment disorder or post traumatic stress disorder. It is this diagnosis that should then be reported as the injury. An injury that is reported as stress or supported by a certificate of capacity that lists stress will automatically be denied.
Once liability is accepted for a psychological injury, a worker’s entitlement to medical expenses and weekly compensation is no different to those workers who have suffered a physical injury. The same however cannot be said for claims for permanent impairment as a worker with a psychological injury needs to satisfy a 15% whole person impairment threshold in order to pursue a claim rather than the 11% threshold that applies to physical injuries.
It should also be noted that in situations where a worker suffers a physical injury and consequently develops a secondary psychological injury, the worker is not entitled to make a claim for any permanent impairment that results from the secondary psychological injury. They may however be entitled to medical treatment and weekly compensation benefits in respect of the secondary psychological condition.
At Taylor & Scott Workers Compensation Lawyers we are experts in advising and acting on workers compensation psychological claims.
We will meet with you and assess your claim. If we believe you have a viable claim, we will apply to WIRO for a grant of legal assistance meaning that you will not pay any costs whatsoever in respect to your workers compensation claim. Please contact our team of experts in workers compensation psychological claims here at Taylor & Scott on 1800 600 664 or email us at info@tayscott.com.au.
At Taylor & Scott “We Care For You”.
