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Could a worker claim weekly compensation payments for a psychological injury that left him unable to work? Which case won?
08 Feb | Which Case Won

Could a worker claim weekly compensation payments for a psychological injury that left him unable to work? Which case won?

by Michael Greene, Elizabeth Street, Sydney

The Facts

Worker acquires psychological injury after being bullied by employer

A worker was recruited by an employer following a history of successful employment with multiple high-level companies. He was employed by the employer as a Senior Director, Product Marketing from December 2012 until July 2013.

During his employment, the worker alleged multiple difficulties with his immediate superior. He said that she bullied him, had a negative attitude towards him and criticised his work. She would not provide him with information to assist with his work, was rude to him in their conversations, and excluded him from conversations with other management staff and from meetings.

This treatment resulted in psychological injury to the worker. In January 2013, he began experiencing symptoms similar to vertigo, even while he was merely sitting at his desk. He also suffered from panic attacks and dizziness and would sometimes collapse.

On multiple occasions at work, he would struggle to get to the bathroom, having to lean on walls to get there, and eventually vomiting.

Worker has multiple jobs punctuated by periods of incapacity for work

In July 2013, the worker finished his employment with the employer.

He did not work again until March 2014, claiming that his psychological injury made him incapable of working.

In March 2014 he started contract work with another organisation, where he worked until July 2015, when his contract was terminated.

The worker did not work between July 2015 and April 2016, again claiming that his psychological injury made him incapable of working.

In April 2016, he commenced employment with a third organisation.

Worker lodges workers compensation claim

On 11 April 2016, the worker made a workers compensation claim, alleging that he had suffered a psychological injury during the course of his employment with the employer.

He sought weekly compensation benefits for the two periods during which he could not work. Period 1was from 1 December 2013 to 2 March 2014. Period 2 was from 1 October 2015 to 18 April 2016.

The worker claimed that he was entitled to this compensation under section 33 of the NSW Workers Compensation Act 1987, on the basis that he had suffered periodic total or partial incapacity for work resulting from his psychological injury.

Employer disputes worker’s claim and parties go to arbitration

The employer’s insurer accepted that the worker had sustained a psychological injury during the course of his employment.

However, the insurer did not accept that the worker had suffered total or partial incapacity for work.

The parties therefore went before an arbitrator at the Workers Compensation Commission to resolve this dispute.

casea
The case for the worker
  • In order to claim weekly compensation benefits for periods 1 and 2, the law requires that I establish that my workplace injury resulted in an incapacity or partial incapacity to return to work in suitable employment during those time periods. My medical history clearly establishes this.
  • Although I suffered from vertigo prior to joining the employer, it was many years ago and the incidents were isolated, with complete recovery. The medical evidence in this case confirms that the anxiety and depression I suffered at the employer’s workplace were a contributing factor to the vertigo I suffer from now.
  • From the date I left the employer, through to March 2014 (period 1), I continued to be very sick, suffering episodic vertigo and vomiting. My GP’s consultation notes confirm that I also suffered from a tight chest, headaches and increased heart rate. I also went to numerous neurologist appointments and had a brain CT scan in an attempt to pinpoint the reason for my symptoms.
  • I did contract work for a different employer from March 2014 to October 2015, but while there, my injury continued to plague me. I had panic attacks, vomiting and a sensation that the room was spinning. Sometimes I would even collapse. There were numerous times when other workers accompanied me to a cab to take me home.
  • In July 2015, my contract was terminated because I was unable to do my job properly due to my injury.
  • After that, I continued to experience vertigo attacks and anxiety-related dizziness and was too ill to work during period 2. I also had ruminations about the manager who had bullied me at the employer. I saw a psychiatrist who diagnosed me with major depressive disorder and I was prescribed antidepressants. I also saw a neurologist who diagnosed me with psycho-physiological dizziness syndrome.
  • Given that my injury at the employer resulted in an inability to return to work in suitable employment during periods 1 and 2, the arbitrator should grant my claim for weekly compensation benefits.
caseb
The case for the employer
  • We dispute that the worker had no capacity or a limited capacity for work during periods 1 and 2.
  • Any incapacity to work alleged by the worker was not caused by the injury he sustained in our employment. He already had bouts of vertigo before he commenced work with us.
  • In March 2014, after leaving us, the worker found suitable full-time employment. The fact that he was able to return to work at that point demonstrates that he had capacity to work in suitable employment, despite any ongoing symptoms.
  • Also, as a matter of common sense, if the worker was capable of working full-time from March 2014, then he had at least a residual capacity to work in suitable employment for some time prior to that date (ie during period 1). Capacity to undertake work does not change overnight from zero work capacity to current work capacity on a full-time basis.
  • Further, contrary to any claims of deterioration, during period 1 the worker participated fully in recreational activities and family life. An article in the Northern District Times dated 26 March 2014 shows that the worker had coached his daughter’s football team to victory in a local competition. In October 2014, the worker received second place in the City of Ryde’s Spring Garden Competition.
  • In relation to period 2, the worker has given no satisfactory explanation as to why his work capacity went from full-time in September 2015 to zero in October 2015. He says that his contract was terminated because he was not properly performing his job due to his injury. However, the evidence does not support this claim. In his performance review, his employer gave him a five out of five for attendance and four out of five for contribution towards the success of the project he was working on. The review noted that he delivered to deadlines as required and was driven to deliver for customers, the product and channel, and was a good fit for the team.
  • The only medical record in evidence relating to any incapacity during period 2 records that the worker’s symptoms were improving.
  • Finally, the worker has given no explanation as to why his supposed inability to work is related to his original injury. Period 2 occurred over three years after he ceased working for us, and follows a full-time contract with a separate employer, for a period of over one and a half years.
  • Given the evidence, the arbitrator must reject the worker’s claim for compensation in relations to periods 1 and 2.

So, which case won?

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Case A Case B

Case B won. You were right!

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b58%

Expert commentary on the court's decision

Michael GreeneLawyer
“To ensure that an arbitrator has no difficulty in identifying the worker as having no capacity or a limited capacity to work, it is important to have strong medical evidence. This evidence should establish that the worker was unable to work during the relevant period, and that this was due to the injury sustained at work.”
Arbitrator rules in favour of employer

In relation to the worker’s claim for weekly compensation for periods 1 and 2, the arbitrator ruled in favour of the employer, rejecting the worker’s argument that he had no work capacity.

Dispute determined by reference to Section 33 of Workers Compensation Act

Under section 33 of the NSW Workers Compensation Act 1987, if total or partial incapacity for work results from an injury, the compensation payable by the employer to the injured worker shall include weekly payments during the period of incapacity.

This section requires the worker to prove that any incapacity suffered resulted from the workplace injury and that there is specifically an incapacity for work.

Incapacity for work is determined by assessing the worker’s “current work capacity”.

A worker has “current work capacity” if due to their injury, they are not able to return to their pre-injury employment, but are able to return to work in suitable employment.

A worker has “no current work capacity” if due to their injury they are not able to return to their pre-injury employment or to work in suitable employment.

“Suitable employment” is defined in section 32A of the Act, and according to the arbitrator is “not constrained by work of a particular level of remuneration or complexity or by having regard to the characteristics of a worker’s pre-injury employment”.

Arbitrator finds worker’s injury caused by workplace

Prior to arbitration, the parties agreed that the worker had in fact sustained a psychological injury during the course of his employment with the employer.

During arbitration, the parties made submissions on whether the worker’s incapacity resulted from that psychological injury or from non-work-related factors.

The arbitrator concluded that by applying a common-sense evaluation of the causal chain and accepting that a condition can have multiple causes, the worker’s incapacity resulted from his workplace injury.

Worker fails to establish lack of work capacity

Although it was agreed that the worker had sustained a psychological injury as a result of his employment with the employer and that he had some incapacity, the arbitrator was not satisfied that the worker had established “no current work capacity” for the two periods claimed.

The arbitrator accepted that the worker would not be able to return to his pre-injury role with the employer, but the onus of proof was on the worker to demonstrate that he also could not return to other suitable employment. The worker failed to prove this.

With respect to period 1, the arbitrator concluded that the work commenced by the worker in March 2014 was suitable employment, despite it being a contract role and at a lower level than the worker was qualified for.

In the arbitrator’s view, as a matter of common sense, if the worker was capable of working full-time from March 2014 in a suitable role, then he had at least a residual capacity to work in suitable employment for some time prior to that date.

With respect to period 2, the arbitrator did not accept the worker’s assertion that his contract role had been terminated in October 2015 as a result of his psychological injury.

None of the employment records produced by him showed concerns over his attendance or job performance.

Arbitrator grants worker’s claim for medical expenses

The worker also made a claim for past medical expenses.

The arbitrator granted this claim, finding that the expenses were reasonably necessary medical expenses resulting from his psychological injury.

Worker unsuccessfully appeals arbitrator’s decision regarding work capacity

The worker appealed the arbitrator’s decision regarding weekly compensation payments for periods 1 and 2.

The Workers Compensation Commission rejected the appeal, concluding that the arbitrator’s decision that there was no incapacity for work was a factual one, open to him to make on the evidence.

Importance of knowing your injury

This case provides good insights for prospective claimants of workers compensation benefits.

First, it helps to know the nature of your injury. The worker was hampered by the fact that he did not have knowledge of his exact injury.

He had symptoms that were similar to a pre-existing vertigo, though prior to his workplace injury, he had never experienced the symptoms as severely.

It was only once he received treatment from a vertigo specialist that it was diagnosed that his vertigo symptoms were triggered by his workplace psychological injury.

Importance of certificate of capacity

Secondly, it is not enough for a claimant to establish that they have sustained a physical or psychological injury. They must also establish that they are unable to work as a result of that workplace injury, or at least can only work in a reduced capacity.

In this case, the arbitrator’s deliberations with respect to work capacity were complicated by the fact that the worker commenced a period of suitable employment (his contract role) immediately following period 1.

To ensure that an arbitrator has no difficulty in identifying the worker as having no capacity or a limited capacity to work, it is important to have strong medical evidence. This evidence should establish that the worker was unable to work during the relevant period, and that this was due to the injury sustained at work.

The simplest way of establishing the link between a lack of work capacity and an injury is for the injured worker to make a workers compensation claim which includes a Certificate of Capacity from their treating doctor. This certificate describes the nature of the worker’s injury or illness, their capacity to work and the treatment required for a safe recovery.

Even if the worker’s claim is denied by the insurer, they should continue obtaining updated certificates of capacity. This helps to establish a chronology of time periods without capacity for work, to better position the worker should they decide to dispute the insurer’s decision.

If a worker does not have a certificate of capacity, it can make work capacity a lot more difficult to establish and may result in the injured worker receiving no compensation for past losses.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.
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