Psychiatric injury is one the most complex injuries to be determined in a workers compensation claim. In most cases where there are allegations of bullying, harassment, victimisation etc. there is usually competing evidence in the form of witness statements or documentary evidence. Section 11A of Workers Compensation Act 1987 is legislation which can be used as a defence by an employer to deny workers compensation entitlements where it is arguable, with evidence, that a worker’s psychiatric condition ‘wholly or predominantly’ relates to reasonable action taken by the employer in relation to the injured worker under one or more of the following:
- Transfer – usually a change of role or responsibilities.
- Demotion and Promotion – a change of rank, grade or title
- Discipline – the provision of instruction or learning and the continuing of that instruction in the form of repetitive training and/or exercise; or punishment
- Dismissal – termination of employment without a worker’s consent or agreement.
- Provision of employment benefits to workers – refers to work entitlements including but not limited to leave, provision of benefits, rostering or scheduling etc.
Injured workers are usually first notified of such a defence in a Section 78 Notice issued by the workers compensation insurer, which should specifically outline the reasons why a claim is declined. In some cases, this does not mean an injured worker does not have a psychiatric injury, but rather that reasonable action taken by the employer wholly or predominantly caused that same psychiatric injury.
It is the responsibility of the employer to prove ‘reasonable action’ had been undertaken. Geraghty J in the matter of Irwin v Director General of School Education NSWCC (unreported) stated the following:
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.”
In determining what is reasonable action, the following needs to be considered:
- Consideration of the facts and circumstances of the injury – what occurred prior and after the relevant action was instituted.
- Weighing the needs of the injured worker against the view and objective of the employer in undertaking that action
- The method the action was carried out by the employer
- Whether the information held by the employer at that time would support their action to be ‘reasonable’.
An injured worker’s treating doctors must provide reports confirming that the worker is suffering from a diagnosable psychiatric condition and outline the events and incidents, which have predominantly contributed to this condition and ongoing symptoms.
An injured worker is obligated to participate with the insurance company’s investigation. You may be required to provide a statement and attend an independent medical examination with a psychiatrist.
If you believe that events or incidents have occurred in the course of your employment have affected your mental health and you have undertaken steps to resolve these issues at work without success, our advice to you is that you should undertake the following:
- Make notes recording events, dates, statements made that have affected you.
- Consult your General Practitioner and obtain the necessary medical treatment and a Certificate of Capacity.
- Submit Notification of a workers compensation injury to your employer. If you cannot return to the workplace due to your psychiatric condition, you can lodge your claim notification online at www.sira.nsw.gov.au.
- Obtain a referral to speak to a psychiatric specialist.
- Seek advice from a workers compensation lawyer.
If an employer wishes to rely on Section 11A to defend the claim, they will produce evidence in support. An injured worker is entitled to receive copies of all evidence relied upon in the making of that decision for their review.
If you are suffering from a work-related psychiatric condition, please contact our nearest office as soon as possible to discuss your matter with a personal injury solicitor.