Employers trying to escape psychological injury and stress claims

Psychological injuries can be just as debilitating as physical injuries, and yet there remains a stigma about seeking help and claiming compensation that you rightfully deserve.

At Kells, we have a long and strong history of helping workers who have sustained psychological injuries in the workplace to seek and secure compensation. However, it can be a long road, and it is important to have experts in your corner to fight for you.

In this article, we will outline some of the common problems encountered in dealing with psychological injury claims, and how we have successfully overcome them in the past.



**The “Reasonable Discipline” Argument**

Under the workers compensation laws, an employer is not liable to pay compensation if the injury was “wholly or predominantly” caused as a result of action taken by the employer in relation to discipline, promotion, demotion, or performance appraisal (among other things).

Employers and their insurance companies may seek to deny a claim because they have taken steps to manage the conduct or behaviour of employees in the workplace. For example, they may issue a performance appraisal which provides poor feedback of the worker’s performance. They may then say that a worker’s psychological injuries have arisen because of the unfavourable performance appraisal.

However, that “tunnel vision” exercised by employers and their insurer fails to consider the context in which an injury arises. Perhaps the performance of the worker has decreased due to bullying and harassment occurring in the workplace.

The key to winning these arguments is to prove the facts. It is important to have sufficient evidence to show that the injury has arisen before any such disciplinary action or appraisal was undertaken by the employer. It is often helpful to use the records of treating doctors to show history of complaints which pre-date those issues raised by the employer.

It is also important to remember that if the employer is to succeed in this argument, they bear the onus of proving that the injury was “wholly or predominantly” caused by that action taken by them. This can be a difficult task, particularly when a worker has strong enough evidence to show that the injury arose independently from those events.

If the discipline or appraisal has contributed to the overall injury, all hope is not lost. Remember, for it to wholly or predominantly be the cause of the injury is a very high bar to reach.

Our lawyers have had considerable experience in disputing claims of this kind, and we have a strong track record of winning.

**Underlying or Constitutional Condition**

Another common issue which arises in workers compensation claims for psychological injury relates to the employer (or insurer) arguing that the worker already suffered from the injury prior to the workplace event or injury taking place.

This is often employed as part of a “scatter gun” approach, with the employer or insurer trying to downplay their own involvement in causing an injury.

For example, in a recent case we had an injured worker suffering major depression and anxiety as a result of bullying and harassment occurring in the workplace. The insurer sent our client to an “independent medical examination” (with a doctor who they pay) and that doctor wrote a report saying that the worker suffered from a bipolar disorder which was unrelated to the workplace.

These sorts of issues are often easier to overcome than problems associated with discipline or performance appraisals (as outlined above).

Often, the best approach is to obtain a sensible opinion from our own doctor to comment on those issues raised by the employer or insurer. Once this sensible opinion is coupled with a detailed statement and comprehensive medical notes (from your past showing no prior psychological complaints) then the Personal Injury Commission (similar to a court or tribunal) will make a decision on the case.

It is obvious in most cases that the Personal Injury Commission will prefer our evidence from a sensible doctor together with the statement and medical history, as opposed to the random and unsubstantiated opinion from the insurer’s doctor.

**The Injury has Resolved**

An employer or insurer may decide that denying that your injury occurred is impossible. However, in a last-ditch attempt to desperately avoid any liability, they may try to say that the injury caused in the workplace has now completely resolved. If you have ongoing symptoms, they will try to blame other factors.

In order to overcome this argument, we often obtain our own independent medical evidence and progress the case to the Personal Injury Commission. Once again, this enables us to present sensible evidence and make logical arguments in order to persuade the Commission to find in favour of the worker.

The workers compensation process is not fair to workers. It allows an insurer to (often) arbitrarily make a decision to dispute a claim, and the onus is then upon the injured worker to dispute that claim. This becomes even more unfair when insurers favour evidence which is clearly inaccurate in order to deny a claim.

The good news is that approved lawyers can help you to fight those decisions. Funding is often available from the Independent Review Office and will allow an approved lawyer (such as those at Kells) to gain access to grants to pay for your legal fees and expenses.

If you have suffered a psychological injury at work and the insurer has denied your claim, you should contact our office today for no cost, obligation-free discussion.

_This information is designed to provide general information to common problems which occur in claims. Every case is different, and you should seek legal advice specific to your individual circumstances. _

Photo 62012215 © Anyaberkut | Dreamstime.com