We’re not sure if you are aware that in most states (i.e. NSW, VIC) a lumpsum compensation is NOT payable for any secondary psychological injuries sustained as a direct result from your workplace accident/injury. A lumpsum payment is only given for primary psychological injuries suffered, and in most states this primary injury has to be “massive”, i.e 30% WPI or more in Victoria. Here follows an interesting, yet very disturbing legal case …and we ask, where is our justice system?
Injured worker not entitled to lumpsum for secondary psychological injury
Background of the case
In January 2008 the worker suffered serious injury to her elbow after falling in her employer’s car park when she was leaving work. The employer’s insurer accepted liability for this claim.
The worker’s injury required surgery and after the surgery was performed it was necessary for a carer to provide personal care assistance to the Applicant. The male nurse that was hired to assist the Applicant inappropriately touched her (indecently assaulted her) and was charged with a criminal offence but was ultimately acquitted.
The workcover claim
The injured worker claimed lump sum compensation in the sum of $22,000 in respect of 22% whole person impairment due to a psychological condition allegedly arising from the incident where she was indecently touched. The injured worker also claimed compensation for pain and suffering.
The Insurer argued that the injured worker had suffered a secondary psychological injury and therefore was precluded from claiming lump sum compensation in accordance with section 65A of the Workers Compensation Act 1987 (NSW) (the Act), …
Liability for the injured workers’ psychological claim was disputed.
The injured worker lodged an Application to Resolve a Dispute with the Workers Compensation Commission.
The first decision
The Arbitrator found that, as a result of the indecent assault/touching by the male nurse, the injured worker suffered a primary psychological injury arising out of her employment to which she was entitled to compensation.
The Respondent lodged an appeal against the Arbitrator’s decision. The Respondent argued that Applicant’s psychological condition had no connection with her employment and that the incident of indecent touching that occurred in her home had broken the chain of causation…. WTF! How typical from the insurer vultures!
The decision on appeal
On the question of whether the injured worker’s psychological injury could have been construed as resulting from her original physical injury, DP Roche held that the indecent touching had broken the chain of causation.
Now, we ask, where is our justice system???
[post dictated by workcovervictim and entered on behalf of workcovervictim]
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