Article #1- What constitutes a psychological injury?
Published on August 12, 2021 by Hanaan Indari and Thomas Felizzi
In this series of articles, Thomas Felizzi from our Compensation Law Team looks at Psychological and Psychiatric injuries in Workers Compensation including:
- What constitutes a psychological injury?
- Is a psychiatric injury a disease, a personal injury or both?
- What are the defences against a claim of psychiatric injury?
- Discrimination damages versus workers compensation benefits
In this first article, Thomas talks about what constitutes a psychological injury under the NSW Workers Compensation Scheme.
What constitutes a psychological injury?
A psychological or psychiatric injury includes cognitive, emotional and behavioural symptoms that adversely affect how a person feels, thinks and behaves. Examples of psychological or psychiatric injury include depression, anxiety, panic disorders, post-traumatic stress disorder and even bipolar disorder and schizophrenia.
Section 11A(3) of Workers Compensation Act 1987 (NSW) (“the 1987 Act”) provides that a psychological injury is an injury (as defined in section 4 of the 1987 Act) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system. An injury described by a treating doctor or general practitioner as a ‘stress condition’ will not suffice to an injury as being compensable pursuant to section 4.
Section 11A(7) of the 1987 Act provides that in the case of a claim for weekly payments of compensation in respect of an incapacity for work resulting from psychological injury, the medical certificate needed to accompany the claim, must, for the purpose of describing the worker’s condition, have accepted medical terminology and not only terminology such as “stressed from work” or “stress condition”.
An injury is only compensable under the workers compensation legislation if it arises out of or in the course of employment and if that employment is a substantial contributing factor to the injury (section 9A of the 1987 Act).
Section 4 of the 1987 Act also defines injury as a personal injury arising out of or in the course of employment (section 4(a)) and includes a disease injury, which is defined as either a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease (section 4(b)(i)). A disease injury is also compensable if it is an aggravation, acceleration, exacerbation or deterioration of the disease in the course of employment, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease (section 4(b)(ii)).
It does not matter if the event to which the worker reacted was innocuous, because employers take their employees as they find them (State Transit Authority of NSW v Fritzel Chemler [2007] NSWCA 249 (“Chemler”), per Speigelman CJ at [40]).
A perception of real events can satisfy the test of injury arising out of or in the course of employment and satisfy the element of causation, if conduct which actually occurred in the workplace was perceived by the worker as creating an offensive or hostile working environment and if a recognisable injury followed (Chemler [69] and [54]). As long as the events within the workplace were real, and not imaginary, it does not matter that they affected the worker’s psyche because of an arguably flawed deception of events or because of a disordered mind.
It is important to remember that employers take their employees as they find them. There is the “egg-shell psyche” principle to consider see Spiegleman CJ in State Transit Authority of New South Wales v Fritzel Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 at [40];
- a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spiegleman CJ in Chemlerat [54]);
- if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemlerat [69]);
- so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Leigh Sheridan v Q-Comp [2009] QIC 12; 191 QGIG 13);
- there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an “objective measure of reasonableness” (Von Doussa J in Wiegand v Comcare Australia[2002] FCA 1464 at [31]), and
- it is not necessary that the worker’s reaction to the events must have been “rational, reasonable and proportionate” before compensation can be recovered.
It is therefore important for the statement of the worker to explicitly detail what their perception was of the event(s) at the workplace that caused injury.
A statement is needed to take proper instructions and also to file proceedings with the Personal Injury Commission – Workers Compensation Division, but no detail should be spared about how those events at work were perceived and how it made them feel. When drafting a statement regard should be had to section 11A of the 1987 Act to deal with the matters that do make up the defence or alternatively, explain why matters pleaded as a defence pursuant to section 11A were unreasonable. Section 11A will be addressed below in greater detail.
Requirement for physiological effect
For a worker to have sustained a personal injury, within the meaning of the 1987 Act, it is necessary that the events complained of have a physiological effect (Yates v South Kirkby Collieries Limited [1910] 2KB538; Anderson Meat Packing Co Pty Limited v Giacomantonio [1973] 47 WCR3).
Whether the worker has suffered a physiological effect will depend on the nature and severity of their symptoms. For a psychological injury, examples of symptoms include feelings of anxiety, panic attacks and feelings of depression.
Furthermore, the physical manifestations of these symptoms are also relevant and helpful when demonstrating what the person can or cannot do by reason of the psychiatric injury. It is important to understand how these symptoms impact upon the worker with regard to the Permanent Impairment Rating Scale (PIRS). It is always helpful to address these categories, particularly when bringing a lump sum compensation claim, and they include self-care and personal hygiene, social and recreational activities, travel, social functioning, concentration, persistence and pace and employability.
