Gaius Whiffin discussing psychological injuries caused by the workplace
Gaius Whiffin providing Q & A on the 2GB Chris Smith Afternoon Show discussing “Personal injury- psychological injuries caused by the workplace“
Wednesday, 13 March 2019
CS– Chris Smith /Gaius Whiffin– C1,2,3, etc – Callers
CS We held onto our personal injury discussion until today and whenever we discuss this issue we usually discuss physical injuries short term injuries such as broken bones or long term problems like hearing loss brought on by loud noises at work but what about injuries you can’t see, mental health problems brought on by the conditions you have been exposed to at a workplace. Well there have been two big workers compensation cases in the courts recently involving journalists, one is a former ABC producer who claims to have been severely bullied by her manager, another is a former crime reporter at The Age who says that she is suffering from PTSD as a result of her exposure to gruesome cases and scenes. So to what extent is an employer liable for the mental wellbeing of an employee? Like I think to what I saw in the last 48 hours where you’ve got miners, those in the front line there and I think to myself they are down there sometimes for 12 hours straight and in the dark and glary light in various positions down some of those tunnels. That would play on your mental health, I could imagine if you were there for a long time and so it would apply to a miner as well. If you’ve got any questions relating to similar matters, maybe something that has impacted on your working life or something that has impacted on a family member and has involved at least discussion of the possibility of a workers compensation claim, if you want some expert advice you can get it right now and you’ll get it free. 131873 and thanks to Turner Freeman lawyers and the legal matter segment. I’ve also got as usual a $100 Westfield voucher to give away to one of our callers between now and the end of the segment. Now if you have a question and it pertains to mental health and personal injury go for your life on 131873 but if it doesn’t and you’ve still got questions about personal injury and it relates to physical injuries as I mentioned at the start of the segment Gaius Whiffin is here for you to give you some free legal advice. He is an accredited specialist in personal injury law with close to 30 years of experience in workers compensation claims, motor vehicle accident claims, skin cancer and public liability claims. The best advice is to get in early and get in right now. 131873. Gaius is a partner at Turner Freeman Sydney office and he joins us, Gaius thank you
GW G’day Chris
CS I’ll get to callers in just a second. Is it common for people to claim workers compensation for mental health problems?
GW Yes it is. I mean you are quite correct. You can get injured at work physically you can also get injured at work mentally. There is a number of reasons that you can get injured at work mentally, the main ones being firstly what you said earlier about exposure to certain situations, that lady that was a crime reporter and was exposed to some pretty horrific scenes during the course of her employment, people in the police, people in the ambulance service, you can be bullied at work which can cause psychological injury or you can get psychological injury due to the nature of the job, long hours working as I said down in a mine. You can get psychological injuries due to a number of reasons.
CS So there has to be a definition of a psychological injury for a court to make a decision about workers comp, what is that definition?
GW Well it has to be more than stress, it has to be a recognisable psychiatric disorder which at the end of the day is a medical definition and has to be determined by the doctors that are seeing you and that can be as much as you only need a very short period of time off work and your GP can make some recommendations or in some cases in the two examples that you have given it can be many years unfortunately that someone is incapacitated.
CS Will it matter if the person making the claim already has a history of mental illness?
GW Well it depends again, it depends what degree the work situation has aggravated that history and the degree to which the aggravation continues. So a situation where you already might have history but you have been bullied at work and the evidence is that bullying aggravates that condition for a short period of time well you can get compensated for that short period of time.
CS Okay. Let’s go to the open line board and take a few questions. Kelly go for your life. Gaius is listening.
C1 Oh Hi look my daughter is currently employed in a company and her particular boss is trying to force her to resign. She has actually said to her that I think you should resign and my daughter has said to her I don’t want to resign. She hasn’t had any warnings and hasn’t been in trouble and the situation now is that unfortunately she is pregnant as well and it is going to be hard for her to get another job but she feels that she is being forced into resigning and the lady has actually advertised her job without even sacking her.
CS She is being bullied basically?
C1 Pretty much yes.
GW Again there certainly seems to be some industrial law remedies if the position has been advertised and she hasn’t resigned and she hasn’t been terminated then there is certainly some industrial law remedies, you can’t do those sorts of things but in terms of personal injury yes look my advice is if you are feeling stressed, depressed or anxious at work you do need to seek some medical attention. A lot of people put up with it for a long period of time and you find that firstly affects legal entitlements but more importantly it affects the person’s recovery medically from the condition. So the first thing I think to do if feeling stressed, depressed or anxious is get some medical attention. You don’t need to initially tell your employer just get some attention and see what the doctors say and if necessary you may need to put in a claim.
CS And has she gone about talking to someone in the workplace that represents the union or someone from a union that represents her.
C1 Unfortunately in what she does and I don’t want to say what she does.
CS No no that’s okay.
C1 They don’t have a union that represents them.
GW In terms of the industrial employment issues she may have to get some advice from Fair work Australia or somewhere like that, at least initially because you don’t want to pay too much in terms of legal advice and perhaps initially get some advice there. In terms of as I said the personal injury side of it and it is clearly a situation that could develop, get some medical attention.
CS I’ve got a $100 Wesfield voucher for you Kelly. You show so much concern for your daughter I think it is admirable and the $100 goes to you.
C1 Are you serious?
CS Yes I am serious and never been more serious. You’ll just have to relay all of that information to your daughter.
C1 Thank you so so much.
CS That’s okay. Stay there Kelly, we will put Kelly through to? and make sure we get her the $100. Is it easier or harder, I know this is a how long is a piece of string question, but is it more difficult or easier to seek some kind of compensation for mental injuries in the workplace as it is to physical injuries?
GW I think it is probably harder, physical injures you can generally tell you can generally get a bit more medical evidence, psychological injuries it’s harder for two reasons, it depends so much on the individuals relating of the problems that have caused that injury and secondly under the NSW Act there is a get out clause for employers so in the example of that case that we just mentioned, if the daughter had been terminated due to misconduct or something and she developed that kind of condition then she is not entitled to compensation. Reasonable actions of an employer can get them out of having to pay compensation.
CS Reasonable action so some kind of activity that tried to solve the problem that you had reported.
GW Yes. Most employers have a large number of policies to deal with psychological injuries not just bullying and performance issues but also issues such as exposure to gruesome activates or exposure to long hours. Most employers do have, especially big employers have some reasonable policies now.
CS Another very general question related to compensation for mental injury, what about the maximum amount of money you can receive, is it usually the case that you would be able to access more money having a psychological injury as opposed to a physical one?
GW No it’s not. The first thing about a psychological injury assuming that you can get over that liability hurdle where your employer has not been reasonable, is you are entitled to your time off work. What sort of lump sum you get depends upon whether your impairment can be classified as over 15%. Now that is a significant impairment level and it really does mean, this is in NSW, so one of the cases that you were talking about earlier was Victorian so it’s slightly different but in NSW you have to get over that threshold to prove your employer was negligent and then you can claim for your full economic loss and it can be in the hundreds of thousands of dollars depending upon the degree to which you are not going to be able to go back to that work or any other work.
CS In the case of the crime reporter I mentioned from The Age, it would make sense that she would have a greater chance of getting compensation as opposed to say the political reporter on the same paper. Although some MP’s can be downright scandalous but having said that it would appear that if she turns up to accidents, goes to hospital and deals in that area, she could clearly have a case where her industry more than another industry would have a likelihood of hurting her mentally.
GW Yeah definitely. Again it depends upon the actions of the employer so in those circumstances it does seem, no one knows the full facts of the case, but it does seem that the employer didn’t have enough policies to deal with those sorts of issues and indeed it seems that what they did in that case was they recognised the issues that she was having but a little while later said well you have to go back to that sort of job so yeah you do have to show that your employer has been negligent to be able to access decent compensation.
CS But then I think okay she is a crime reporter but then again there are police and paramedics who deal at the frontline of all this stuff, no wonder we have so many cases that have to come under consideration for workers compensation.
GW And I have dealt with a number of police and ambulance officers specifically who have been quite traumatised by events over many many many years and you can understand that.
CS I can understand it. Gaius Whiffin, thank you very much for coming in again and taking our calls. Much appreciated. Good on you.