The NSW Workers Compensation Commission has dismissed an employer’s appeal, finding its disciplinary action, which led to a worker’s wrongful termination, had caused his psychological injury.
Psychological injury at work was caused by wrongful disciplinary action and sacking
The Fairfield Hospital security officer ‘s employment was terminated in 2004 after he was accused of looking at female body parts on the CCTV.
He returned to work at the hospital after successful proceedings in the Industrial Relations Commission. He was also awarded monetary compensation, which he had problems obtaining from the employer.
The worker said his work was very stressful when he returned and that he was always looking over his shoulder. Some months later he was involved in an incident with a fellow security guard, which left him feeling “distressed, upset and frightened”, and took a few days off.
When the worker returned to work the security guard apologised to him, however the hospital told him that the incident would be investigated further. The hospital conducted interviews regarding the incident. Following the second meeting the worker ceased work with the hospital.
The worker lodged a compensation claim for a psychological injury he allegedly suffered in the course of his employment because of false complaints, allegations, harassment and bullying between 2004 and 2007.
The matter went to arbitration and the worker was allowed compensation.
The employer appealed against the decision in the NSW Workers Compensation Commission before Acting Deputy President Deborah Moore.
The employer argued that the worker’s psychological injury was triggered by the disciplinary interview process following the incident with his co-worker in 2007, rather than from 2004.
“I accept that the disciplinary interview played some part in the development of [the worker's] condition, but it was not the predominant cause,” Acting Deputy President Moore said.
“Given the background of the events from 2004, in my view, it was inevitable that the Hospital’s actions consequent upon what appears to have been a minor flare up… were bound to have significant psychological consequences for [the worker].”
The employer noted that the worker did not make any complaints about his symptoms and incidents of bullying and harassment after he was reinstated.
However, Acting Deputy President Moore said this was not fatal to the worker’s claim, and pointed to “clear evidence [from his psychologist] that the events particularly following his wrongful dismissal… caused [him] significant distress and concern”.
“In cases such as this, it does not follow that the absence of treatment means that there were no symptoms. In my view, the Arbitrator correctly concluded that it was the incident with [his co-worker] that was ‘the trigger’ for the need for treatment.”
The employer also submitted that the worker’s marital difficulties, following his termination in 2005, were indicative that there were factors irrelevant to his employment which also contributed to his condition.
Acting Deputy President Moore rejected the claim, finding the evidence showed that the worker’s marital problems were a direct consequence of the allegations made in 2004, which led to his wrongful dismissal in 2005.
“Having carefully reviewed the evidence, I am satisfied that the Arbitrator was correct in concluding that [the worker] suffered a psychological injury resulting from the nature and conditions of his employment from 2004 to August 2007,” Acting Deputy President Moore found.
“Were it necessary, I would conclude that the action taken by the Hospital with respect to discipline was not reasonable in the circumstances of this particular case,” she said, dismissing the employer’s appeal.
Sydney South West Area Health Service v Sharma [2009] NSWWCCPD 90 (4 August 2009)
Shortlink: http://aworkcovervictimsdiary.com/?p=5185
Case in point: isn’t it interesting (again) that workcover will go to great lengths (again) to try and put the cause of this injured worker’s psychological injury on his “marital problems” rather than on the employer’s unwarranted harsh disciplinary action and unlawful sacking?
As we have discussed in many articles, when you are sent to an independent psychiatrist for an examination, it is extremely important that you stick to the work-related problems you have encountered and any psych injury(ies) suffered as a consequence. You will notice that many IMEs will be desperate to interview you at great lengths about your personal life, marital life, your friends, family, childhood, whatever, just in the hope to be able to pinpoint the cause of your primary or secondary psych injury(ies) to an unrelated event in your life, rather than to work or the work accident!
In a recent example, an injured worker comments that an IME psychiatrist had insinuated that her mother had committed suicide because she had died in a car accident! The injured worker’s mother was not even alone in the car when they got rammed into by another car and both the mother and the passenger died at the scene. The IME had reported in her biased, fraudulent report that there was no “evidence” that the mother had not committed suicide and therefore it was possible that the injured worker suffered severe depression from a congenital(familial) rather than a secondary (work accident) cause! How horrid is that!? And yet this happens every day to many injured Australian workers and the only reason is that the workcover insurer, greedy as it is, is desperately looking for a way to mitigate their losses (liability and compensation pay out, by ANY means possible).
An ethical IME psychiatrist would report back that any marital, financial, depression, anxiety, etc. issues are nothing else but direct CONSEQUENCES I(or after-effects) from the work accident/injury, right!?
Thanks God, perhaps, that there are still some smart judges who can clearly see through such a scams (as in the article presented).
Just be very careful about what you say during so called psychiatric IMEs. Keep it to “work” and make a point that anything that is not “right” is nothing else than a direct after effect of your work injury.