Workcover and liability for an injured worker who commits suicide

Diary-of-WC-Victim-hopeless

The pressure many injured workers experience as a result of being on compensation creates such a grinding sense of despair and hopelessness that they start thinking about suicide as a solution to their problems. Most don’t follow through, but a few tragically do. What’s perhaps most disturbing is that employers (aka inhumane workcover insurers) will attempt to deny liability on the basis an injured worker’s tragic death by suicide is not causally related to his or her employment, even though the injured worker became hopelessly depressed as a consequence of their workplace injury and… dealing with the inhumane workcover system. The ultimate insult to the deceased injured worker and their family!

Workcover and liability for an injured worker who commits suicide

Diary-of-WC-Victim-hopeless

Workers who are injured in the course of their employment not only suffer the consequences of a work injury or disease in terms of disability and impairment.  In addition many injured workers are subjected to a myriad of claims procedures, medico-legal investigations, dispute processes and surveillance which retards recovery and produces further assault on the injured worker’s physiology (body) and psychology (mentally) . The delay in recovery for these workers has also financial consequences for them.  The consequences of this double harm frequently arise out a deep scepticism directed towards injured workers.

Over and over, the workcover victims are harmed through extremely bureaucratic claims processes, over zealous claims management, lack of humanity and lack of good faith in claims handling. Enough at times, and for some, to “make you want to jump off a bridge”… literally.

Workcover and “self-inflicted” injury: the legislation

Section 14(3) of the Workers Compensation Act 1987 (NSW) provides that “[compensation] is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury”.

The Victorian equivalent of section 14(3) is section 82(3) of the Accident Compensation Act 1985 (Vic) states “[i]f it is proved an injury to a worker (whether or not intended to be inflicted) was deliberately or wilfully self-inflicted, there is no entitlement to compensation in respect of that injury”.

Does this mean that death of an injured worker by suicide is not compensable?

A signi ficant number of Claims that are disputed in circumstances where the deceased Worker committed suicide. For example, as stated above, Section 14(3) -NSW- of the Workers Compensation Act 1987 excludes compensation for death caused by intentional self-inflicted Injury.

However, there are many situations where a suicide arises out of or in the course of employment and is, therefore, compensable.

In Linda Gay Hayman v Fire Rescue NSW trading as NSW Fire Brigades [2012] NSWWCC 214 the NSW Workers Compensation Commission had to consider an employer’s liability for an injured worker’s suicide following a  severe depressive injury brought about by a  workplace injury.

Facts of the case

The (injured) worker, Paul, was a fire fighter in the employ of NSW Fire Brigades. He sustained an injury to his right arm whilst performing his work duties.

This injury progressively deteriorated and he ultimately underwent surgery on his right elbow.

As a result of his injury, Paul was left with significant physical limitations and had to retire from his much loved work as a fire fighter.

This caused him considerable distress as he had enjoyed a distinguished career of more than 25 years.

He attempted to engage in other work with limited success.

He was also unable to continue participating in a number of  hobbies he had previously enjoyed, including camping.

Paul also struggled with basic activities such as domestic chores.

Being left in a state of significantly decreased physical capacity, Paul developed major, chronic depression.

[Not to mention the likely additional harm caused through the extremely adversarial workcover system, a process that is so complex, so entrenched,  so murky, so lacking of humanity, that it no longer does what it was supposed to do: provide protection for the injured worker so s/he can get better and perhaps can get back to work].

Tragically, Paul eventually took his own life.

Paul’s wife, Linda,  issued proceedings in the Workers Compensation Commission for death benefits on behalf of herself and her children.

The employer (workcover insurer) denied liability on the basis Paul’s death by suicide was not causally related to his employment.

The employer/insurer relied on section 14(3) of the Workers Compensation Act 1987 (NSW) which provides “[compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury”.]

However, in Holdlen Pty Ltd v Walsh [2000] NSWCA 87,  the Court affirmed prior case law “suicide, an intentional act of the worker, would break the chain of causation between the injury and the death unless the worker’s mental state, described as insanity, was such it should not be regarded as an intentional act”.

The Court noted “in contexts not involving insanity…the will may be overborne or subjected to such influences that, although an act is deliberate, it is not regarded as the actor’s intentional act”.

Decision

The NSW Commission ultimately decided the depressive illness which led to the deceased’s suicide resulted from the injury he sustained at work.

In doing so, it reaffirmed and applied the rationale set out in Holdlen’s case.

The Commission found the medical and lay evidence established the necessary causal link between the injury to the deceased’s right arm and the depressive illness, and found it was the depressive illness that ultimately caused the deceased to take his own life.

 

[Post dictated by WCV and manually transcribed on behalf of WCV]

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2 Responses to “Workcover and liability for an injured worker who commits suicide”

  1. I knew Paul, I know of many other firefighters also who have “solved their problems”
    Firefighters are in the solution business.
    When someone rings 000 we respond and the bucks stops right there. (who could WE ring? superman?)
    So firefighters are in the solution business, whatever happens, whenever it happens we deal with it, I cant remember driving away from a fire leaving it to burn, leaving someone trapped in a vehicle and heading back to the station or leaving a chemical spill for kids to play in.
    In 30 years I can recall at least 20, probably more firefighters who have committed suicide.
    How many people at your work have done this?
    Is it work related? are bears catholic? does the pope shit in the woods?

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  2. I suggest everyone that has being affected by these changes tells their story..we need to reach 200 responses on this latest site by David Shoebridge who is campaigning for injured workers. This can be done at :

    https://davidshoebridge.good.do/tell-your-workcover-story/tell-your-workcover-story/

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