Truck Driver denied compensation for PTSD – Story

PTSD_Trauma2

In Victoria, the impairment threshold for a primary psychiatric injury is a whopping 30%. Only if you have been assessed as suffering from a “serious” primary psych injury (i.e. 30% WPI or more) can you obtain a lumpsum in Victoria (currently around $77,000). What’s worse, if you cannot sue for additional compensation under common law if your injuries are NOT the fault of your employer (or any other person), leaving many severely psychiatric injured workers with very little or no compensation at all.

Truck Driver denied compensation for PTSD

The following distressing story highlights the difficulties injured workers face in proving negligence on the part of the employer – for causing a foreseeable psychiatric injury – and, ultimately for successfully litigating psychiatric injuries by means of common law.

Traumatised worker “I” Story

In [month] of [ year], around [time] I was driving west bound on the Western Freeway near [Victorian town] when I ran over a young girl that was lying on the road who had been clipped by a truck in front of me.

There were 3 trucks involved in this accident.

You can only imagine the horrific carnage I saw that [day/night].

Since then I suffer nightmares, flashbacks, anxiety etc. I have been diagnosed with Post Traumatic
Stress Disorder [PTSD]. I sleep for maybe 3 hours a night, am unable to drive and lack the capacity and confidence to return to truck driving.

The problem with this is that TAC will not touch this [case] as it occurred whilst I was working and, it’s because my injury didn’t arise out of the negligence of someone else’s use of a motor vehicle.

Workcover [Vic] does pay for [my] medications, psychologist, 80% of wages, but they do not cover pain and suffering and loss of potential income. [Compensation by means of a common law damages claim for pain and suffering and economic loss]

This is what I was told to me after phone calls to TAC and WorkCover Vic.

These types of accidents are occurring more on our roads and there needs to be a way for truck drivers to receive compensation so they can rebuild their lives. TAC/Workcover/Employers need to introduce a mandatory insurance policy that covers PTSD. This is a grey area of the law that needs to be changed.

[This incident happened] in [year] and I am still no good. WorkCover  weekly payments are now only $550 (gross) and I have to sell my house .


A serious psychiatric injury is one which involves a permanent impairment of 30% or more to the whole body, seldom achieved indeed. No account can be taken of any psychological injury which arises as a consequence of a physical injury. Only primary psychological injury can still be considered eg. post traumatic stress.

Currently, in Victoria the no-fault lumpsum compensation for a 30% primary psychiatric injury is only $77,540.

compensation-psych-injury-vic

Click to view compensation tables (VIC)

Psychiatric injuries / Stress claims and workcover compensation

In order for a psych (or ‘stress’) claim to be successful, there are 2 conditions that must be satisfied.

  1. you need to have a diagnosable psychological / psychiatric injury -and it has to have arisen from your work
  2. you need proof that your employer has acted unreasonably towards you

Workers compensation is paid where a workplace injury prevents you from being able to perform your job and earn an income.

It’s important to understand that, generally speaking, if the stress is related to the environment (work) and if changing that environment will remove the stress there will be no workcover compensation; you will receive any loss of wages (and some medical treatment) and that is about it.

Where it is proven your employer had no negligence it is even less likely you will receive anything at all.

For example, if you were working in a bank and taken hostage and abused/assaulted/threatened by an armed robber, you could well subsequently suffer from a diagnosable psychological injury arising in the course of your employment (such as PTSD), BUT which wasn’t caused by your employer’s unreasonable action or negligence.

Generally speaking, the only times you will receive any form of compensation (such as the lumpsum) other than lost income (for time off) and medical care paid for, is in the event of a severe permanent psychiatric disability/impairment (30% WPI primary psych injury) that prevents you from working, where ongoing expenses for medical treatment will continue and where you can not be re-trained to perform any other type of work.

Depending on the state in which your injury occurred, (e.g in Vic) you may be able to sue for additional compensation under common law but only if your psych injuries are “serious” (i.e. 30% WPI) AND the fault of your employer (or any other person). However it may be possible to make such a claim even if the injury may have been partly your fault. Successful claims result in compensation (aka common law damages claim) being payable.

Common law claims can include monetary compensation being claimed for:

  • pain and suffering
  • past and future medical expenses (where applicable)
  • past loss of earnings
  • future loss of earnings or loss of earning capacity, and
  • past and future loss of Superannuation contributions.

 

While our no-fault workers comp system has its advantages, it also clearly has serious disadvantages, leaving countless seriously injured workers without any meaningful monetary compensation, confining them to a life of poverty and inability to rebuild their injured lives.



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6 Responses to “Truck Driver denied compensation for PTSD – Story”

  1. I think there is a separate scale used besdies the 30%WPI (which is more of a physical assessment scale) if lifestyle is severely detrimented by the injury. Not sure where the info is but I guess a lawyer should be able to advise about this.

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  2. @John, you are correct – Access to common law damages in Victoria is currently restricted to injured workers who have sustained a “serious injury”. This means that the worker’s injury must satisfy either the “deeming” (quantitative) test (30% WPI) or the “narrative” (qualitative) test.

    Mental disorders or behaviour disturbances are assessed separately from physical injuries for the purpose of determining whether an injury satisfies the narrative test.(AC Act, s 134AB (38)(h).)

    This test is an alternative test to the quantitative test. It does not rely on a percentage score but rather relies on an assessment of the effect of the injury on your quality of life. This test is referred to as the narrative test as the WorkCover legislation narrates a series of criteria that must be taken into account. The criteria are any one of the following:

    Serious permanent loss of a body function
    Severe permanent behavioral or mental disturbance
    Permanent serious disfigurement
    Loss of a fetus

    As this is a qualitative test, it requires a careful assessment of the full occupational, social, domestic, financial and psychological effects of your injury. In considering this test courts will look at many factors in determining whether an injury may be considered to be serious or not. Each case must be assessed on its own information about the full effects of an injury on the person.

    This qualitative test is a very complex test.

    The psychological effects of an injury must be considered as ‘ severe’

    ‘See: http://aworkcovervictimsdiary.com/2013/08/qualifying-for-serious-injury-in-victoria-using-the-narrative-test/

    Still, even if your mental illness is considered severe (quantitative or narrative test), you can not sue for common law damaged unless you can prove negligence on the part of the employer. Same goes for physical injuries.

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    • Did you know that if you lose your penis you get $100,000 in lumpsum compensation (in VIC), but if you literally lose your mind (= 30% WPI in VIC) you get $77.000 – how utterly ludicrous! Who put a dollar value on our body parts?

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  3. Tragic road accident continues to haunt Clunes man
    By PATRICK BYRNE
    March 2, 2015, 10:30 p.m.

    BRIAN Duff doesn’t know how much longer he can survive.

    The Clunes truck driver lost his will to live after a tragic work accident last year in which a young man lost his life.

    What started as “a day like any other”, February 4, 2014 quickly turned into the worst day of the 55-year-old’s life.

    A hard-working, loving husband and father, Mr Duff was driving his Volvo prime-mover to Allansford, near Warrnambool, to pick up a load of limestone.

    Catastrophe struck about 10.30am when a European farmhand, a 27-year-old who had only been in Australia for two weeks, made the life-ending decision to cross the Timboon-Colac Road on a quad bike.

    The young man probably didn’t even see the 29-tonne truck before it hit, killing him instantly.

    “That job was all I had to do that day. It was going to be a pretty cruisy day,” a broken Mr Duff said last week.

    “But that day destroyed my life. Everyone says, ‘It wasn’t your fault’, but it still doesn’t sit very well. I killed someone and it has turned my life upside down.”

    Fresh out of a six-week stay in a private Geelong psychiatric hospital, where he was treated for severe post-traumatic stress disorder, anxiety and depression, Mr Duff said he and his family’s life had been “shattered” since the accident.

    “The flashbacks are the worst. They can come at any time and it’s like I’m right there with the young fella,” he said. “I can’t sleep. I have nightmares. I don’t socialise anymore. Every day is just a huge struggle.”

    Never much of a drinker, Mr Duff said it was a culmination of heavy drinking and stress that led to a moment before Christmas last year when he “lost the plot”.

    “I just wanted to be okay for Christmas and okay around the kids,” he said.

    “But I wasn’t, and I knew I needed help. It was just getting out of control and I was starting to really think about it (suicide).”

    Mr Duff’s wife Ann took him to his doctor in early January and he was automatically transferred to the private-care facility in Geelong.

    Since coming home from the facility, where he received 24-hour, one-on-one therapy, he said life was a little better.

    “It saved my life; it really did,” he said. “But I can’t focus on getting better, getting on with life, because we have no money.”

    They have sold most of their assets. They have no superannuation due to another tragedy in 2000 when Mr Duff lost much of his left hand.

    And they can’t pay their mortgage, let alone the piles of endless bills.

    Immediately after the accident, Mr Duff continued to receive WorkCover payments equal to his full wage. He was still receiving about $1500 a week and, apart from severe grief and his slipping mental health, life was okay.

    The bills and mortgage were getting paid.

    But due to strict WorkSafe regulations, those payments have now been severely cut.

    Sometimes going without food, Mr Duff and his wife must now survive on less than $500 a week. They still have one son at home and fear they are about to lose the family home as mortgage payments become harder to make.

    “I know it’s just how the system works, but something needs to change,” Mr Duff said of the dwindling payments.

    “I’m a workaholic. All I have ever done is work.

    “But at the moment, I just can’t. I’ve got nothing to hide.

    “I’ve paid taxes all my life and right now I need some support, but due to the regulations, I can’t survive.”

    Mr Duff is still heavily medicated and overcome with anxiety when faced with the task of driving.

    He said anything could trigger the flashbacks.

    A devastated Ann said all she wanted was her husband to get better, or at least feel a little better.

    But she said the stress of knowing he was about to lose the home he’d worked so hard for, was too much.

    “He might be okay if he could just know we were all right financially,” she said.

    “But we’re not. This accident has destroyed us.

    “And to think that if he hadn’t have gone to work that day, or if he had have stopped prior to the accident for a toilet break … our lives would be fine.”

    A spokesman said WorkSafe was aware of Mr Duff’s situation and that it would continue to work with the Duffs to ensure they could cope.

    “The trauma associated with a workplace injury can never be underestimated, and WorkSafe recognises the severe impact it can have on an injured worker and his or her family,” spokesman Peter Flaherty said.

    “However, the laws governing the compen-sation that can be paid to injured workers is set out in legislation and WorkSafe is bound to ensure these laws are administered appropriately.’’

    Anyone wishing to help the Duffs can contact this reporter on 5320 1248 or email patrick.byrne@fairfaxmedia.com.au

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  4. Give that bitch a drink of water.(the one that’s contaminated) cheers denise.

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  5. thanks for getting out there ,i have been ruled 25% impaired buy workcover s syic ,not bad meeting me for only 30 mins and 30 questions ,but i appealed it i have a medical pannel next week see what that brings .one other thing there are no victims of crime here also even though she was breaking the law

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