Often an injury is clear cut. You sustained a physical injury to your back when you fell from a ladder whilst working as a painter. Or perhaps you are a teacher and sustained a psychological injury, such as depression or anxiety, due to relentless bullying and harassment by the principal of your school.
This blog post explores the interrelationship between physical and psychological injuries when they aren’t so easily separated.
Can you have a physical and a psychological workplace injury?
The short answer is, yes. Some clients, such as many of our Police clients, have sustained both physical and psychological injuries. They may first seek advice from us here at Bourke Legal because they are unable to work due to a diagnosis of Post-Traumatic Stress Disorder (“PTSD”). But as we speak to them, they mention their bad back or dodgy knees – and we inform them they can also make claims for these injuries.
We have another client who injured her knee whilst working at a childcare centre. She lodged a claim, and the subsequent bullying, harassment and unreasonable disciplinary action undertaken against her by management as a result of lodging the claim, has arguably caused her to sustain a separate, psychological injury which is compensable under the Act.
It is possible to suffer from both a physical and psychological injury – and the impacts on an injured worker can be significant and profound.
What if my physical injury has caused me to suffer psychologically?
This is a question we are asked quite often.
Imagine you are that painter who has sustained the back injury referred to above. It has been life changing. You are in constant pain. You can no longer work. You have had to undergo multiple surgeries. You can no longer play with your children or participate in the sports you used to enjoy. You are reliant on your spouse to undertake the household and outdoor chores. It has negatively impacted your social life and your relationship with your spouse, family and friends.
It wouldn’t be surprising if dealing with all of this also had a negative impact on you, psychologically. Perhaps you have been diagnosed with depression, you have been referred to a Psychologist for treatment and your GP has prescribed you with anti-depressant medication. This is a sad but understandable reaction. This is referred to as a “secondary” psychological injury. It is not a “primary” psychological injury – caused by your employment – but a secondary reaction to your physical injury due to your pain and the adverse effect that injury has had on your life.
So can I bring a psychological injury claim?
Unfortunately, and perhaps unfairly, the Workers Compensation Act does not permit you to bring a claim and receive compensation for a “secondary” psychological injury. Your psychological symptoms, as debilitating as they may be, cannot be taken into account when having any Whole Person Impairment (“WPI”) arising from your physical injury, assessed. However, your “secondary” psychological injury and how that condition affects your ability to work, can be taken into account when assessing your capacity for work. You should ensure that your “secondary” injury is listed next to your primary injury on your Certificate of Capacity, and, that your treating doctor is assessing your capacity to work (ie. hours and days per week) and restrictions to be applied, accordingly.
What about if I sustain both physical and psychological injuries on the same date?
There might be circumstances where an injured worker sustains both a physical and psychological injury in the same incident. The most common example of this is when someone is violently assaulted. A Disability Support Worker might be assaulted by someone they are looking after who is themselves, psychologically unwell. This could result in two primary injuries – a psychological diagnosis of PTSD, as well as a physical injury to the worker’s shoulder, for example.
In this case, the Workers Compensation Act only allows a claim to be made for only the injury that results in a higher WPI assessment. No lump sum compensation is payable for the other injury, or injuries, sustained on the same date, but the effect of both injuries on the worker’s capacity for work will be taken into account when assessing entitlement to weekly benefits.
Let’s run through who can claim what
The painter can make a WPI claim for his back injury. He will be entitled to lump sum compensation as long as his WPI is at least 11%. He cannot make a claim for his “secondary” psychological injury – his depression – as it arises from his physical injury, but the effect of the depression on his capacity for work can be taken into account.
The teacher can make a WPI claim for her psychological injury. She will be entitled to lump sum compensation as long as her WPI is at least 15%.
The Police Officer make a claim for her physical and psychological injuries as they arise from different events on different dates. Her PTSD likely arose from the whole of her 15 years in the Police Force, while her back and knee injuries occurred on different, specific dates. As an exempt worker (a Police Officer, Paramedic or Firefighter), she will be entitled to lump sum compensation for her physical injuries as long as her WPI is at least 1%, and lump sum compensation for her psychological injury as long as her WPI is at least 15%.
Finally, the Disability Support Worker will be able to claim lump sum compensation for whichever primary injury results in the highest WPI, which would most likely be his PTSD, rather than the injury to his shoulder, and both primary injuries will be considered when assessing capacity for work (which in determines entitlement to weekly benefits).
What should you do?
There are many intricacies in the Workers Compensation claim when considering what type of claim you can make. This is particularly the case if you are suffering from both physical and psychological injuries. Let us help you navigate the law and ensure you are claiming everything you are entitled to – give us a call on 1300 026 875 or contact us via our website – www.bourkelegal.com