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.
Expert commentary on the court's decision
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.