Society now has a much better understanding of mental health issues than it once did. We have a better understanding of the effect that harassment, bullying, discrimination or changes in job responsibilities can have and we can discuss these issues in a compassionate and understanding way.
Fortunately, as a result, we are now better equipped to help those who suffer psychological harm in the workplace and the law is better able to understand how these injuries occur.
How does this sort of claim work?
Workers’ compensation benefits are payable when a psychological injury is suffered at work. The injury needs to be a recognised psychiatric diagnosis, for example, anxiety or depression. It is not sufficient that your doctor certifies that you suffer from stress or other symptoms.
When an injury has been established, subject to the exceptions set out below, then full workers compensation rights are available. That is to say, weekly payments of compensation are payable during periods of incapacity for work, your employer is required to pay for your reasonably necessary medical expenses and you can receive an additional lump sum benefit in certain circumstances.
Exceptions in psychological claims
There is an exception for injuries that are caused by the reasonable action of your employer with respect to transfer, demotion, promotion, performance review or discipline. If the injury is caused by one of these matters then no workers’ compensation is payable.
Frequently there is a dispute about whether the actions of the employer were ‘reasonable’ and where liability is in issue then that determination will be made by the Workers Compensation Commission.
Secondly, lump-sum benefits are only payable where the whole person permanent impairment that has been suffered is at least 15%. That is greater than the threshold of 10% for physical injuries.
Thirdly, if the psychological injury is the second injury (that is, secondary to a physical injury) then no lump sum benefits are payable.
What are ‘work injury damages’ claims?
Apart from a workers’ compensation claim under the NSW scheme, someone who suffers a psychological or psychiatric disorder as a result of their employment may also be eligible to make a common law work injury damages claim.
The employer’s negligence must be established as the cause of the injury in this type of claim. This means the employer’s duty of care to the employee was breached – not maintaining a safe system of work, or not taking action in response to claims of bullying or harassment, may be examples of such breaches.
The claim can be made for loss of past earnings and also future earning capacity.
Again, the Claimant must be assessed as having a whole person impairment of at least 15% or greater to be eligible to make a claim for work injury damages.
If this common law claim is successful, it should be noted, it ends any further entitlements to workers’ compensation benefits, including weekly payments and medical expenses incurred as a result of the injury.
There is also the possibility of an employer (or its insurance company) claiming that a person contributed to their injury, which may reduce the number of damages payable if successfully proved.
Speak with compensation specialists
Claims for psychological injury can be complicated and lengthy.
Employers may defend themselves by saying they engaged in ‘reasonable action’ in dealing with an employee. They’re also the complexities of whole person impairment and medical assessments in these claims.
The guidance and advice of expert compensation professionals such as BPC Lawyers will help you make the best possible claim if you believe you are suffering a psychological injury. Contact us for an initial discussion of your case or call us at (02) 8280 6900.