Injured worker not entitled to lumpsum for secondary psychological injury

lumpsum-workcover

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

Sydney South West Area Health Service v Dyer [2012] NSWWCCPD 46

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), …

which provides that lump sum compensation is only payable for a primary psychological injury.

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

Deputy President Roche overruled Arbitrator Dalley’s decision, finding that the injured worker’s injury did not arise out of her employment because it was not part of her employment duties to have home care.

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.

As a result, the injured worker had neither suffered a primary or secondary psychological injury arising out of her employment.

 

Now, we ask, where is our justice system???

 

[post dictated by workcovervictim and entered on behalf of workcovervictim]

 



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6 Responses to “Injured worker not entitled to lumpsum for secondary psychological injury”

  1. This is really a discriminatory and bully biased decision!

    The injured worker was being treated for the injury occurred at work by a therapist I guess authorised and endorsed by the Workcover authorised insurer therefore the injured worker was again offended within the workplace framework, why isn’t this a work injury???

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  2. Well, I agree, if this woman had not been injured in the first place, she would not have required a nurse to help her at home and she would not have been sexually assaulted – so what is the f*cking problem? The chain of events simply continue and this should, in my opinion, clearly have been work-related still.

    It is so shocking to see that there is very little justice… are some of our judges bribed by insurers?

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    workcovervictim3 November 18, 2012 at 9:51 am
    • When I read these stories I feel very sorry and try to imagine how the witness is trying to cope with the unwanted disaster 🙁

      Oh, multi billions insurances only bribing Judges, not politicians, not public servants???

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  3. This business of them being able to claim “secondary” status for some injuries and hence deny all liability is so cynical and damaging for those hurt by the system. It also enables and encourages the Claims Managers to behave in bullying and illegal ways towards injured workers. This is what needs a class action challenge – against the Workcover system for failure of its duty of care to injured workers. They system is making us sicker than our workplace injuries, and that is a crime!

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  4. If the worker didn’t fall she wouldn,t have needed care & she wouldn’t have been touched, molesed, in the way she was. She was very poorly treated. It all stems back to the fall. Someone should have paid , Another person let down by the system.

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  5. It’s just a pure disgrace!! the fact they can take any situation and adabt the whole system to protect the guilty and punish the innocent and injured 🙁 pretty sad i think,,especially for here in Australia a country that is suposed to be fair and just,!!! Not no more:(

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