Injured workers may face a difficult time when they are required to undertake psychological testing for treatment of a psychological condition.

Psychological tests are common tools used by Psychologists to assess a person’s mental ability, acuity, personality and neurological functioning. They are important tools that help treating psychologists in understanding your mood, behaviour, cognitive ability and provide valuable information that can assist with preparation of treatment plans to address an injured worker’s psychological symptoms.

The Workers Compensation Insurer may also refer injured workers for psychological testing for the same purposes, to ensure an injured worker is receiving optimal treatment.

There is an obligation for injured workers to attend appointments arranged by the insurer for general management purposes or assessment of workers compensation claims.

Injured workers need to be advised of the true and proper nature of any independent medical examination, especially involving psychological testing. There must be a clear explanation on why the psychological testing is necessary and on what basis it is required. This would usually be in the form of a report or written opinion by a qualified medical practitioner.

It is also important that any psychological testing is conducted by a qualified specialist.

Sometimes injured workers are requested to undergo forensic psychological testing for other purposes, in particular, where independent psychologists and psychiatrists are asked to assess the validity of an injured worker’s psychological condition. In other words, these tests may be used to provide an opinion on an injured worker’s credibility or reliability.

In Common Law, the rules of evidence are governed by the Evidence Act 1995 and the Uniform Procedure Civil Rules Part 23 Division 1. It is not uncommon for workers compensation legal practitioners to refer to Common Law precedent to dispute complex issues.

In the matter of Rowlands v State of NSW [2009] NSWCA 136 his Honour Hodgson J stated at clause [49]:

‘…The ordering of particular medical examinations must be for the purpose of obtaining evidence about a plaintiff’s medical condition, and cannot be justified by the purpose of obtaining evidence that might go to the plaintiff’s veracity generally.’ 

This principle was acknowledged in the matter of Vincent v SAS Trustee Corporation [2016] NSWDC 73. The psychological test in question, being an MMPI-2-RF, was recommended by the Insurer’s psychiatric specialist to ‘test “the veracity” of the plaintiff’s responses to questions put to him by that specialist during examination.

His Honour Neilson DCJ stated at clauses [17] and [19], the Evidence Rules cannot be circumvented to obtain information for the purpose for testing a witness’s credibility. Where the purpose of psychological testing is to test the veracity of statements made by an injured worker, it is no different to testing the reliability of that person.

His Honour dismissed the Defendant’s motion requiring the Plaintiff to undergo psychological testing.

Independent medical examination

If you are required by your insurer to undergo an independent medical examination which involves psychological testing, you have the right to request the following information, which are recommended by the Australian Psychological Society:

  • What is the purpose of the psychological testing?
  • The nature of the testing or method that will be used.
  • The validity of the testing and whether they are fit for purpose.
  • The duration of the appointment.
  • Are there any breaks during the assessment?
  • The opportunity to decline to participate in psychological testing.
  • The consequences of participation or declining to participate in psychological testing
  • The confidentiality of the results of the testing and to whom the results would be provided to and in what form.

If you consent to participate in psychological testing, injured workers have the right to be instructed and assessed in a fair and reasonable manner. Testing should be conducted in a safe environment, free from distraction or other stressors.

If you decline to participate in psychological testing, or are unsure of an upcoming examination with a Forensic Psychiatrist or Psychologist, contact your legal representative or your treating Doctor or Specialist for advice.

Seek legal advice

If you’ve injured yourself at work, had a claim denied or you need advice about a work-related injury, please contact our experienced Workers’ Compensation lawyers at Turner Freeman on 13 43 63.