The importance of evidence in any legal proceeding is something that is common knowledge amongst the wider community, not just solicitors who practice in the field. Almost all legal proceedings rely upon the facts and what evidence can be provided to substantiate these facts. This is particularly true in workers compensation claims that involve psychological/psychiatric injuries.

Psychological/psychiatric injuries in the workplace are becoming more and more prevalent. In our experience at Turner Freeman, it is quite common to hear from an injured worker who has been suffering psychologically at work for quite some time, only to lodge a claim once their employer takes them aside and takes action against them that the employer considers reasonable.

An insurer’s defence

Under section 11A of the Workers Compensation Act 1987 (NSW), provides that

No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was 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 or dismissal of workers or provision of employment benefits to workers.”

As highlighted above, insurers have this defence available to them if they can prove that your injury was wholly or predominantly the result of reasonable action. The reasonable action can be a contributor to your injury, it just cannot be the whole or predominant cause.

The importance of speaking up

Most of the time in psychological/psychiatric cases, an insurer will discount any issues you were having at work prior to the reasonable action event. Once there is evidence that you lodged a claim shortly after this reasonable action event, the insurer will almost certainly decline your claim using the section 11A defence.

That is why your evidence in such circumstances is critical and your most important tool in these circumstances is your voice.

As soon as you start to feel that you are struggling mentally with something at work whether it be your workload, a lack of support, a colleague who is mistreating you, tell someone. Tell your boss. Tell a colleague. Tell your GP. Just by telling your GP, their clinical records become contemporaneous evidence of what you were experiencing before the reasonable action event.

You should also tell your loved ones. A statement from a family member that testifies that you were having psychological issues before the reasonable action event is not only contemporaneous evidence but it is evidence that the Personal Injury Commission accepts and welcomes.

If you are able to prove through your evidence that you were suffering psychologically before the reasonable action event, and that, as a result, the reasonable action event was not the whole or predominant cause of your injuries, the Personal Injury Commission will find in your favour and the insurer will be ordered to accept liability for you claim.

At Turner Freeman, we have specialist personal injury lawyers who will assess your case and provide personalised advice regarding your legal entitlements. Our lawyers are located across NSW including offices in Sydney, Parramatta, Penrith, Campbelltown, Windsor, Toronto, Newcastle, Wollongong, Gloucester. Contact us today on 13 43 63 or 02 8833 2500.