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.
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.
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.
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.
- you need to have a diagnosable psychological / psychiatric injury -and it has to have arisen from your work
- 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.