Workers Compensation for victim of bullying and harassment in the workplace
Published 20 Jun 2017
Our client was bullied and harassed in his workplace and sustained a psychological injury as a result. A common question that we come across here at Gerard Malouf and Partners, is whether a worker with a psychological injury is able to recover Workers Compensation. It is a reasonable question to ask, given that the majority of injuries are physical and not psychological.
The answer to that is that psychological injuries are compensable under the Workers Compensation Scheme and you are able claim largely the same entitlements for psychological injuries as you would for a physical injury.
Though, the entitlements are similar, the path to obtaining compensation for psychological injuries is different. Psychiatric claims are not often straightforward and they face certain hurdles in the Workers Compensation Scheme that claimants with physical injuries do not face.
First and foremost the impairment threshold requirement differs, where psychiatric injuries are disadvantaged. In physical injuries, the threshold requirement which will allow a lump sum payment is 11% whole person impairment (WPI). In a psychiatric injury it is 15%WPI. The higher threshold requirement for a psychiatric injury makes these claims more stringent.
In physical injury claims, the pathology obtained through radiological scans assist in determining the extent of an injury. The medical view is objective. In psychiatric injuries, it is subjective medical opinion which needs to be supported by factual statements. Psychiatric claims often face problems regarding the availability of witness evidence and the willingness of workers to come forward in support of proving factual events. Often the witness still works for the employer and will not wish to jeopardise his or her own employment by given an accurate statement of what took place at work.
For this particular client, he was dedicated to his employment, however he was subjected to constant bullying and harassment at work by his boss and co-workers. He developed a significant psychiatric injury as a result.
Due to his psychiatric injury, he was unable to continue with his work and he required treatment which included attending upon a psychiatrist, counselling with a psychologist and the use of medication.
Taking the usual steps, we organised for our client to be assessed by a workcover approved psychiatrist to determine his impairment for his Workers Compensation claim lump sum claim. The assessment was returned with a rating of well over 15% Whole Person Impairment. A claim was made for lump sum benefits however this was declined by the insurer. The impairment dispute was submitted in the Workers Compensation Commission which required our client to undergo an examination with an Approved Medical Specialist (AMS), who was to give a binding assessment on impairment
Then AMS agreed with our own medico legal assessor in determining that our client had an impairment rating of over 15%WPI and in fact rating the impairment as being over 20%WPI. The dispute did not end there as the insurer appealed the decision of the AMS.
We rightfully objected the appeal and the Appeal Panel agreed with us by upholding the original assessment rating of the AMS.
After many months in processing this claim, we at Gerard Malouf & Partners had cemented a victory in the impairment rating. With that we were able to obtain a lump sum payment for our client for his impairment under his workers compensation rights. From there we were also able to pursue a Work Injury Damages claim, namely a common law negligent claim.
In accordance with section 151H of the Workers Compensation Act 1987, a Work Injury Damages claim is only permitted if Whole Person Impairment is 15% or higher. Among other factors, to succeed in a Work Injury Damages Claim, it must be shown that there was some negligence on the part of the employer which led to the injury. If the employer did not practice a safe system of work, then they can be held liable in a Work Injury Damages claim. Allowing actions that bullies and harasses an employee is not a safe system of work.
Our client placed his trust in Gerard Malouf and Partners for both his Workers Compensation and Work Injury Damages claims. Outstanding results were achieved for this client in both claims. Our client was awarded compensation that has presented him with the opportunity to move forward with his life.