Psychological Injury Claims

What is a psychological injury?

A psychological or psychiatric injury is emotional, behavioural and sometimes cognitive symptoms that affect how a person feels, thinks and behaves.  Examples of psychological injury or psychiatric injury include anxiety, depression, post-traumatic stress disorder, panic disorder, adjustment disorder or bipolar disorder.

A psychological injury can only be claimed if your injury arises in the course of employment and if that employment is a substantial contributing factor to the development of the psychological injury.

Usually, people sustain a psychological injury in the course of employment because of the way that they are treated by their supervisors or co-workers.  Bullying and harassment in the workplace is a growing problem and an employer must take reasonable steps to ensure that employees do not sustain psychological injuries due to bullying and harassment.

Psychological injuries can be sustained anywhere and may present themselves anytime from weeks to months after the event has occurred. In the workplace, psychological injuries can be the result of overwork, bullying, intimidation, stress and as a by-product of a physical injury being sustained.

Compensation Claims for Psychological Injury

If you do suffer psychological trauma in the course of employment, you can make a claim for compensation under the Workers Compensation Act.  You will need to obtain a workers compensation Certificate of Capacity from your general practitioner which sets out the psychological injury you have sustained, the treatment you require and whether you are totally unfit or partially unfit for work.  You need to obtain this medical certificate to start your claim for psychological injury in the workplace.

Workers Compensation Certificate of Capacity

It is important when you obtain the Certificate of Capacity in psychological injury claims in NSW that the diagnosis on the certificate is a psychological condition and not simply called “stress”.  The workers’ compensation system in NSW does not recognise “stress” as an injury.  A psychological injury claim in NSW must be a recognisable psychiatric condition such as anxiety, depression, PTSD, adjustment disorder and the like.  If your doctor just puts “stress” on your certificate, your claim will be declined.

Common Law Claim for Psychological Injury in NSW

If you have sustained a psychological injury in the course of your employment, you may be able to make a common law claim for damages.  This is known as a Work Injury Damages claim.

To make a common law claim for psychological injury in NSW, you must establish the following:-

1. A common law claim for psychological injury must be commenced within three years from the date of injury (the date of injury is usually the last day you worked).
2. You must have a whole person impairment of at least 15% or greater.
3. Your psychological injury must be such that it affects your ongoing capacity to work.
4. The injury must have been sustained as a result of the negligence of your employer, that is, the employer has breached their duty of care to ensure your safety whilst in the workplace.

Most commonly an employer breaches their duty of care in relation to psychological injuries when they fail to adequately respond or deal with a complaint of bullying and harassment in the workplace.  The employer must have in place adequate policies and procedures to deal with bullying and harassment in the workplace and then must follow those procedures.  Often employers may have such policies and procedures but regularly fail to follow those procedures and as a result, often breach their duty of care to employees to ensure their safety whilst in the workplace.

Section 11A of the Workers Compensation Act

The most common reason that the workers compensation insurer will decline a claim for psychological injury is because of Section 11A of the Workers Compensation Act 1987.

This Section states that no compensation is payable in respect of an injury that is a psychological injury if the injury was “wholly or predominately caused by reasonable action taken by the employer” with respect to “transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers”.

Often a psychological injury occurs in circumstances that also involves some disciplinary matters or performance appraisal.  The insurer will often seek to decline a claim because they will argue that the real cause of the psychological injury was reasonable performance appraisal or discipline taken by the employer.

Usually, the psychological injury occurs by reason of bullying and harassment from a supervisor which then leads to performance appraisal or discipline.  In those circumstances, Section 11A will not apply.

Workers’ compensation insurers regularly use Section 11A to decline claims and more often than not the insurer is wrong and the claim can be challenged in the Personal Injury Commission.

Type of Workers Compensation Benefits for a Psychological injury

The Workers Compensation Act allows for the following types of compensation to be payable if you have sustained a psychological injury:-

1. Payment of weekly wages when you are unfit or partially unfit for work.
2. Payment of medical expenses for both psychological and psychiatric treatment.
3. Payment of a lump sum amount of compensation if you have an ongoing permanent psychological injury that is equal to or greater than 15% whole person impairment.
4. A claim for Work Injury Damages for past and future loss of income because of a permanent ongoing psychological injury caused by the negligence of your employer.

An accredited specialist in personal injury law can assist you to make a successful psychological injury claim.

At Garling & Co Lawyers, we have experienced accredited specialists in personal injury law who have run hundreds of cases for clients who have sustained psychological injury.  Contact us today.