Psychological injury and proving work-relatedness: cases

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Having liability accepted for a psychological work-related injury can be very difficult, even more so because the connection or relationship to work can be (and is often) less obvious than in workcover claims involving only physical injuries. However in the following recent legal cases, the courts accepted that there was a psychological work-related injury present.

Psychological injury and proving work-relatedness: cases

Case 1: Suicide was work-related

In the recent case of W v Boral Cement Limited [2015] NSWWCC 245 (19 August 2015), the NSW Workers Compensation Commission (WCC) ordered compensation to be paid to the family of a deceased worker, ruling the injured worker’s suicide was (tragically) work-related.

In this tragic case, a worker (sales manager) who had been severely injured in a car accident in the course of his work, tragically committed suicide 5 months after the incident. Besides suffering from severe physical injuries, the deceased worker also suffered from memory loss and from depression.

The NSW WCC accepted that there was a real connection or casual chain between the deceased worker’s depression, his physical injuries and …. his suicide. Simply said: the tragic death of this poor injured man was found to be a result of injury arising out of or in the course of his employment, and not the result of an intentional self-inflicted injury.

The family of the deceased worker received just under $500,000 lumpsum death benefit

You can read the full text of the legal case here:W v Boral Cement Limited [2015] NSWWCC 245 (19 August 2015).

Case 2: Work main contributor factor to psychological injury

In the recent case of State of New South Wales v Rattenbury [2015] NSWWCCPD 46 The NSW Workers Compensation Commission (WCC) that a psychological injury suffered by a worker was the main contributing factor to the worker’s incapacity. Compensation was payable.

The NSW WCC [President Roche] agreed that there was a clear history of events that constituted harassment and unfair treatment of the injured worker, a radiographer.

Of important note is that Roche stated that employers have to take into account personalities that are more susceptible to psychological injury:

“… Mr [the injured radiographer] is an example of the “eggshell psyche” principle…[having] had a “predisposition to depression…

“It is patently obvious that, on causation, Dr [N] felt that Mr [R’s] interaction with his managers “triggered” his depression. That is, that the events at work caused his depression…”

Roche also noted that a perception of real events can sometimes be enough to satisfy the test of injury arising out of or in the course of employment.

You can read the full text of the legal case here: State of New South Wales v Rattenbury [2015] NSWWCCPD 46

The injured worker’s perception is important

The “egg-shell psyche” principle is quite well explained in the following (NT) legal case. The injured worker (a nurse) employer essentially argued that a major depressive illness suffered by the nurse was caused by reasonable administrative action (and as such not compensable), HOWEVER the injured nurse perceived she had been bullied and harassed at work. The Supreme Court ordered a retrial of the case.

In other words: a sensitive worker who misinterpreted what was essentially deemed as “reasonable action” by her/his employer, and consequently suffered a psychological injury, may be entitled to workers compensation.

[Full text of this case: C v Northern Territory of Australia [2015] NTSC 45 (11 August 2015)]

Justice Barr pointed out that reference to the worker’s perceptions required the magistrate to consider whether the worker harboured such work-related perceptions, and not whether the perceptions were justified or reasonable. The magistrate was required to consider not only what happened to the worker, in terms of events in the workplace, but how the worker perceived those events. The magistrate then had to consider and decide whether such perceptions caused the worker’s mental injury.

The authorities established that, if a worker perceives conduct on the part of others in the workplace as creating an offensive or hostile working environment, and as a result of that perception suffers a mental injury, causation under workers compensation law is made out.

Justice Barr noted: “There is an ‘eggshell psyche’ principle in the law of workers compensation, analogous to the ‘eggshell skull’ principle at common law. However, there is one significant qualification: the relevant perception held by the worker must be a perception about an incident which actually happened or an actual state of affairs”.

The case

The worker (a remote area nurse in NT) claimed she had struggled to carry out duties due to ongoing feelings of alienation and ostracism. The evidence did not support this. She was happy to have her own room to treat patients. She was happy to be given the paediatric portfolio and attend a training course in Darwin. She was given generous leave and there was no evidence she was unfavourably treated regarding sick leave or call outs.

The Supreme Court was however satisfied the magistrate failed to apply the relevant legal test in deciding the issues raised by the employer’s pleading of reasonable administrative action, as noted above.

The Supreme Court concluded: “In summary… a decision in favour of the worker is not the inevitable result of my allowing the appeal. Therefore, regrettably, a new trial is required. The matter must be remitted to the Work Health Court.”

Another egg-shell psyche principle case

A similar egg-shell psyche principle was found in the case of H and Telstra Corporation Limited [2015] AATA 218 (13 April 2015)
The Administrative Appeals Tribunal (AAT) considered a compensation claim by a Telstra project manager and found he suffered a disease (ie major depressive episode or disorder) that was contributed to – to a significant degree – by his employment with the company.

The worker claimed that he first suffered the condition in 2010, and that it was caused by “intense and sustained very high stress levels” as a consequence of prolonged exposure to high workloads as well as “volatile and mentally demanding work” in the context of his “high motivation, dedication, commitment and desire to achieve positive outcomes for customers and Telstra”.

The AAT ruled the worker was entitled to compensation for his condition, noting  it was not necessary to find his workload was objectively excessive.

“I find that he did genuinely perceive that he had a high and stressful workload, and this perception was based on the fact that he was undertaking a project management workload,” he said.

“I am also satisfied that this perception contributed, to a significant degree, to his depression.”

“I am not satisfied that his [condition] was a result of reasonable administrative action.”

 

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



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2 Responses to “Psychological injury and proving work-relatedness: cases”

  1. This is a tragic story of an injured worker and the courts were satisfied that his mental/psychiatric condition was a result of his physical injuries

    Tania Marie Luxford & Others v Gebie Civil & Construction Pty Ltd [2014] NTMC 31 (18 December 2014)

    “In summary, the evidence indicates that Mr Luxford came to GEBIE with a psychological vulnerability in the form of a past history of depression and maladaptive personality traits. He was sensitised to what happened to him at GEBIE given that he previously developed a major depressive disorder after a physical injury sustained in the workplace. That is, Mr Luxford’s previous experiences made him more vulnerable to responding to a physical injury in the same way that he did before, namely by developing a major depressive disorder and by becoming angry. The literature indicates that the most common cause of a completed suicide is depression. Even though other factors may have contributed to Mr Luxford’s completed suicide, including his maladaptive personality traits, in my opinion, he probably would not have committed suicide in 2011 but for his depressive disorder”.

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  2. These cases are truly heartbreaking and lead me to the sad case of someone I know. Max was a police officer involved in a hostage situation where he was shot, but he caught the perpetrator. He consequently suffered a psychological injury and was deemed to have over 15% WBI. (it was not the first time he had been attacked on the job either). There were no suitable jobs for him with the police and he was made to go to many IMEs, some of whom abused him further. At no stage was he offered any treatment for his illness and eventually he was dismissed from the job because the bosses were worried that he was a risk for them as he told them he would continue to shoot perpetrators (this shows he has not gotten any better). He eventually received a payment (obviously not enough) and left the police force.
    Now this broken man works in another job but honestly thinks there is nothing wrong with him, despite outbursts of anger, bouts of depression and behaviour that can be quite bizarre.
    No one can get an over 15% whole body psychological assessment agreed to by the Insurance companies and not be sick. My point is that the lack of treatment has worsened his condition. At no point in this whole story did anyone including his own doctor do anything to treat this man effectively and yes I realise his refusal to think he has a problem has a lot to do with it.
    Surely the basics of any workers compensation scheme should be to treat the victim, but no, we have a system where the name of the game is money. Refusing to accept psychological injuries, fighting those suffering from them in court and being so adversarial that suicides result is an indictment on this system. My friend thinks he beat the system because he got a small settlement, his family thinks he is insane, I think he is a victim of a cruel vicious industry whose prime motivation is to save money and get rid of victims as soon as possible whilst making them go through hell in the process. Where is their accountability for what happens to untreated victims?

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