In this section we’ll give you some tips on how you can increase your primary psychiatric impairment for which you are eligible to receive a lump sum in Victoria.
What is an impairment benefit under workcover?
Workers who have a permanent impairment resulting from a work-related injury or illness covered by WorkSafe may be able to receive a monetary lump sum entitlement called an ‘impairment benefit’. This payment is separate from any weekly payments and medical and like services a worker may receive.
In order to decide whether a worker is able to receive an impairment benefit, a worker must have their permanent impairment assessed in order to determine whether they meet or exceed a minimum percentage value.
There are minimum impairment values that have to be met before a worker can receive an impairment benefit. If your claim is accepted and you are assessed with a degree of physical impairment of 5% (or 10% depending on body part) or more, and/or a psychiatric impairment of 30% or more as a result of the one workplace incident you may be entitled to receive a lump sum benefit.
Impairment benefit for psychiatric injuries under workcover
It is important to know that there are two types of psychiatric injuries: primary and secondary.The impairment threshold for a primary psychiatric injury was 10% but is now a whopping 30% in Victoria. A psychiatric impairment which arises “as a consequence of, or secondary to” a physical injury (i.e. injured back then developed a depression) is a secondary psychiatric injury/impairment and secondary injuries do NOT get compensated in a lump sum (however you do get some compensation for “pain and suffering” if you are able to lodge a damages claim under the Common Law). However, a primary psychiatric injury/impairment does count for the lump sum compensation. (Also, if you suffer from a physical injury and a primary psych injury, the primary psych injury will be added to your physical injury (via complex calculations) for the purpose of a permanent impairment claim and lumpsum in Vic. So if you suffered 20% physical injury and 10% primary psych, this will NOT add up to 30% as calculations are complex. An example would be 26% physical WPI and 23% primary psych injury would give you a total of 43% WPI (and not 49%)).
In this section we’ll give you some tips on how you can increase your primary psychiatric impairment (for which you get a lump sum).
For the purpose of assessing impairment under the Accident Compensation Act (ACA), a number of criteria must be met:
- there has to be a diagnosable psychiatric injury (i.e. depression, post traumatic stress disorder)
- the disorder must lead to an impairment which continues to be present at the time of the assessment and the assessing psychiatrist considers it a permanent disorder
- there has to be a direct and clearly established link between the circumstances of injury and the psychiatric disorder
- the psychiatric disorder cannot be explained as secondary or a consequence of physical injury
Methods for scoring non-secondary (= primary) psychiatric impairment under workcover
There are 3 means by which this process has been done:
- determining total psychiatric impairment and subtracting secondary psychiatric impairment from that,and what’s left is then considered as non-secondary (or primary) psychiatric impairment
- Determining total psychiatric impairment and also separately determining the primary (or non-secondary) psychiatric impairment
- determining psychiatric impairment by scoring only those symptoms which derive from a primary (or non-secondary) psychiatric injury/disorder
The legislation says that in determining compensable impairment regard must NOT be had:
to any psychiatric or psychological injury or symptoms arising as a consequence of, or secondary to, a physical injury.
Category 1: Psychiatric impairment from a psychiatric injury which is secondary to a physical injury does NOT count
So, a person who has experienced physical disability of whatever form and who subsequently develops a ‘reactive depression’ has a psychiatric injury which will lead to a secondary psychiatric impairment – which does NOT count.
Example: a worker suffers a back injury after lifting something heavy at work. Because of his back injury the worker becomes depressed because he is unable to work, do household tasks, mow the lawn, whatever. So the worker has become depressed as a result of his back injury and inability to do certain things – in this case, any impairment due to depression (even if the worker is suicidal) will not be included in the overall impairment assessment! This is terrible, I know, but it is the law and hence you will need to ‘work’ hard on proving primary (or non-secondary) psychological injury to get some compensation (lump sum).
Category 2: Psychiatric impairment from a psychiatric injury/disorder which has arisen from a previous non-secondary (primary) psychiatric disorder does count.
A psychiatric injury/disorder that develops secondary to a primary (non-secondary) psychiatric injury/disorder should be included in determining primary (non-secondary) psychiatric impairment.
For example: a person with a post traumatic stress disorder (PTSD) may subsequently develop a panic disorder with agoraphobia. The assessor may need to decide if the panic disorder is secondary to the PTSD or to the physical injury.
If you suffer from post traumatic stress, emphasise this and and say that you have now developed panic attacks from the post traumatic stress, if true
The rule of thumb is: If it is a psychiatric injury then a further psychiatric reaction and impairment to a physical sequelae of that initial psychiatric injury does count.
Another example: a person with PTSD develops tension headaches and muscle spasms that are induced by anxiety. The severe headaches and muscle spams may contribute to a depressive disorder. The depressive disorder is secondary to physical symptoms but the physical symptoms arise from a psychiatric disorder which has led to a non-secondary (primary) impairment.
Pretty complicated, I know ;(
Category 3: Psychiatric impairment from a “pain disorder” may count as arising from a non-secondary (primary) psychiatric injury
This only applies if you have pain in the absence of a physical injury (or when the physical injury is not sufficient to explain the pain). If the pain disorder can be shown to have developed at the time of the incident, it MAY be regarded as a primary (non-secondary) if there was no physical injury. However, if there was a physical injury, no matter how small, any psychiatric impairment arising from that pain is secondary.
If you have not sustained a physical injury, but you do have pain say so! (i.e. generalised pain, fybromyalgia type pain etc)
Category 4: A psychiatric impairment from a delayed psychiatric disorder/injury arising from an accident may count as a primary (non-secondary) psychiatric impairment
The commonest situation in which this category applies is the one where a person experiences a traumatic accident, which may or may not involve physical injury and the psychiatric symptoms develop days, weeks or even months later after the traumatic event.
Example: a woman was involved in a serious car accident (work related) with her husband who suffered major injuries. The woman devoted herself to him for 6 weeks, until his condition had stabilised. The woman had no time until then for her own concerns. After 6 weeks, she was exhausted and began developing PTSD symptoms arising from the accident.
So, in this case, the development of a psychiatric injury/disorder may lead to a primary psychiatric impairment. The important issue is whether or not the psychiatric injury can be linked to the traumatic accident itself.
Examples: phobic anxiety about traveling by car, PTSD, distress with reminders of car accidents. Or you witnessed a colleague being injured (i.e. severed finger), you can say that you have flashbacks, nightmares etc.
Category 5: Psychiatric impairment from a psychiatric injury/disorder arising directly from trauma, whether or not there is a physical injury, may count as a primary (non-secondary) psychiatric impairment
An incident which involves obvious trauma whether or not any physical injuries has occurred, for example a work accident involving threat to life and limb, or a hold-up, may lead to a psychiatric injury/disorder. Any psychiatric impairment related to this psychiatric injury/disorder may be primary.
Category 6: Psychiatric impairment from a psychiatric injury/disorder, which has arisen within 12 hours of an accident or acute injury, counts as a primary (non-secondary) psychiatric impairment
The 12 hours allow for the usual timeframe within which occurs rescue, retrieval and emergency treatment.
A psychiatric injury/disorder arising after this 12 hour timeframe may also lead to a primary psychiatric injury/impairment but there needs to be a clear link established between the accident experience and the psychiatric symptoms.
Again: emphasise you definitely suffer from post traumatic stress if it’s true (of course). i.e. Immediately after the accident you became scared of the [triggers] [circumstances] surrounding the accident – it could be smells, walking into that place, etc. You started having flashback, nightmares immediately.
Category 7: Psychiatric impairment from a psychiatric injury/disorder arising directly from an acquired brain injury may count as a primary psychiatric impairment
If you have a brain injury then you should make sure to check out someone like these brain injury lawyers, as a brain injury can be fatal. A person suffering from a brain injury often experiences psychiatric injury which can arise in 3 ways:
- the psychiatric injury/disorder may come from the brain injury itself (i.e. organic mood disorder, personality disorder)
- it may arise as a consequence of the brain injury (i.e. an adjustment disorder with depressed mood)
- it may arise directly from the circumstances of the incident which led to the brain injury (i.e. PTSD)
Note: in the 2nd example, the psychiatric injury is secondary and any psychiatric impairment does NOT count.
Again emphasise that you suffer from PTSD (if you do)!
Category 8: A psychiatric impairment from a psychiatric injury/disorder arising from workplace response occasioned by a physical injury can count as a primary (non-secondary) psychiatric impairment, but it is usually a separate injury
Workers who experience work place harassment, at the time or subsequent to physical injury, which leads to a psychiatric injury/disorder may have a primary psychiatric impairment.
The tricky question here is whether it has become a new and separate injury. Psychiatrist may be place in a difficult position, they are obliged to regard the psychiatric injury as secondary with regard to the original physical injury and yet cannot give advice as how to pursue the matter further as a new and separate injury, which would make it a primary (non-secondary) psychiatric injury.
Example: a worker had been employed for 10 years. He suffered a back injury and had months off work and improved with treatment. The worker was very happy to return to work and at that stage had no psychiatric symptoms. The employer did not want a disabled worker and made it clear… he was given inappropriate jobs, was verbally abused etc and the worker developed a severe depression and ceased work.
In this example, the psychiatric injury (depression) is secondary to the original physical injury.
Category 9: A psychiatric impairment from a psychiatric injury/disorder arising from a complication of treatment for a physical injury does not count under section 91(2) ACA.
A complication of treatment for a physical injury may lead to a psychiatric disorder. But any psychiatric impairment arising from this psychiatric injury/disorder is secondary!
Example: a woman with rib pain following a work incident was injected into the rib. The needle punctured her lung. She thought she was going to die and suffered a severe panic attack and has continued to suffer from panic attacks ever since.
Whilst the injury is secondary under the act (ACA), other remedies may be available. For example under section 83(1)(d), an injury occurring in the context of medical treatments constitutes a distinct injury (a new injury).
Category 10: A psychiatric impairment from an acute psychiatric injury/disorder which has arisen from an acute exacerbation of a previous physical injury may count as a primary psychiatric impairment
A person who has had one or a number of serious physical injuries in the past which was associated with significant pain, discomfort and disability and from which the person has recovered, wither wholly or in part, may experience subsequent traumatic incident in which the person has a reasonable fear of further physical injury. If the person has sustained a psychiatric injury in these circumstances, the psychiatric impairment arising from this may be primary (non-secondary) if there has been immediate and continuing distress which has been noted by others.
However, if there is an initial upset because of pain which later settles and subsequently a depressive disorder develops because the pain has not resolved over a period of weeks, any psychiatric impairment is likely to be regarded as secondary to the physical injury, unless the depressive disorder can be shown to have its origins at the time of injury.
I know that all this is very heavy reading, but it is very important that you understand how the psychiatrist will assess your ‘psychiatric impairment’. You have to remember that only primary (non-secondary) psychiatric injuries/impairment count for a lump sum compensation.
EVERY LITTLE BIT (AS IN IMPAIRMENT % YOU WILL RECEIVE) COUNTS AND OFTEN A FEW EXTRA % WILL MAKE A HUGE DIFFERENCE (i.e. physical gets you 20% but if you manage to get 10% primary psychiatric injury you will have a total impairment rate of 30%, which equals serious injury = fast track common law damages if there was negligence). So just be careful what and how (in what context) you say.
Signs and symptoms of post-traumatic stress disorder (PTSD)
The symptoms of post-traumatic stress disorder (PTSD) can arise suddenly, gradually, or come and go over time. Sometimes symptoms appear seemingly out of the blue. At other times, they are triggered by something that reminds you of the original traumatic event, such as a noise, an image, certain words, or a smell.
While everyone experiences PTSD differently, there are three main types of symptoms:
- Re-experiencing the traumatic event
- Avoiding reminders of the trauma
- Increased anxiety and emotional arousal
Symptoms of PTSD: Re-experiencing the traumatic event
- Intrusive, upsetting memories of the event
- Flashbacks (acting or feeling like the event is happening again)
- Nightmares (either of the event or of other frightening things)
- Feelings of intense distress when reminded of the trauma
- Intense physical reactions to reminders of the event (e.g. pounding heart, rapid breathing, nausea, muscle tension, sweating)
Symptoms of PTSD: Avoidance and numbing
- Avoiding activities, places, thoughts, or feelings that remind you of the trauma
- Inability to remember important aspects of the trauma
- Loss of interest in activities and life in general
- Feeling detached from others and emotionally numb
- Sense of a limited future (you don’t expect to live a normal life span, get married, have a career)
Symptoms of PTSD: Increased anxiety and emotional arousal
- Difficulty falling or staying asleep
- Irritability or outbursts of anger
- Difficulty concentrating
- Hypervigilance (on constant “red alert”)
- Feeling jumpy and easily startled
Other common symptoms of post-traumatic stress disorder