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1. The true losses suffered in a Car Accident are often under-estimated.2. Who can claim motor vehicle injury compensation?3. What can you claim for as part of motor vehicle injury compensation?4. What are the most common road and car accident injuries?

Mental health problems involve a negative change or disturbance in the way a person feels (mood), thinks, behaves, or interacts with other people. Where this change causes a significant issue for day-to-day life, work or relationships it is called a mental illness or disorder.

Around 45% of Australian adults will suffer a mental illness or disorder at some point in their life. The 2007 National Survey of Mental Health and Wellbeing found that the two most common types of mental illness were anxiety disorders and affective disorders like depression (Survey Key Findings).

Mental illnesses can be caused by a variety of factors - some repeated or long term, like prolonged stress, and some single events, like witnessing a significant trauma or event.

While the focus on work injury compensation is often on physical injuries, if you have suffered a psychological injury or trauma due to negligence while working in Queensland then you may be entitled to compensation.

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What is a workplace psychological injury?

Physical injury is not the only harm that a person can suffer in the course of their employment. If a person develops a mental illness due to something that happens at work or while performing work duties, it is called a workplace psychological injury.

Psychological injury claims are sometimes called psychiatric injury claims, mental health claims or workers compensation stress claims. There is no significant difference. If a person has developed any type of diagnosed mental illness due to their work, they may be entitled to claim personal injury compensation. 

More minor mental wellbeing problems, like job stress, are generally not sufficient to claim psychological injury. Only a suitably qualified doctor or psychologist can determine if you are suffering a psychological condition.

What are common causes of workplace psychological injuries?

Psychological injuries in the workplace can be caused by many different circumstances. Some  common causes of this type of personal injury are:

  • workplace bullying or harassment;
  • witnessing a workplace accident;
  • dealing with traumatic or sensitive issues at work, such as treating patients suffering illness or helping people deal with bereavement (death of a loved one);
  • being the victim of a violent crime at work;
  • unlawful discrimination;
  • unreasonable management action, like demoting you for raising a workplace safety issue.

What are common workplace stress injuries?

Recent studies have identified that work-related mental stress can lead to an increased risk of developing:

  • anxiety
  • depression
  • aggression
  • burnout
  • fatigue
  • social and behavioral health problems
  • musculoskeletal disorders
  • cardiovascular disease

Which professions are most at risk?

Understandably, there are certain jobs where it is more likely that a person might suffer a psychological injury. They generally fall into two categories:

  1. High-stress occupations

All jobs can involve stress, however workers in some jobs are more likely to suffer consistent high pressure and job-related stress that can impact mental health. For example, Safe Work Australia reports that teachers make the second highest percentage of compensation claims for serious work-related mental health conditions.  

  1. Traumatic jobs

Certain jobs involve trauma as part of the work employees are required to perform. Workers in these jobs can suffer high levels of emotional stress, which can lead to them developing psychological conditions such as post traumatic stress disorder (PTSD). Examples include first responders dealing with crime and accident scenes and medical professionals and paramedics dealing with traumatic injuries, illness and death.

However, any worker can suffer distress or trauma in their work that could entitle them to compensation. Our lawyers will listen to your experience and provide expert advice on whether you have a claim for psychological injury or workplace stress.

How common are workplace stress claims?

The data collected by the Office of Industrial Relations in Queensland, for the 2018-19 year, reveals the following information about workers compensation psychological injury claim lodgments :

  • 4,884 claims were lodged.
  • 43% of claims were made by people aged 45-59, with 33% 30-44 years of age and 16% of claims by people under the age of 30.
  • although these claims make up only 2.7% of all ‘time lost’ claims they result in the most payments – averaging $47,565 per claim.
  • 10% of people remained unfit for wok after the claim had finalised.
  • over $70 Million in payments for claims for the year.

What is a secondary psychological injury?

A physical injury can lead to serious impacts on a person's mental wellbeing. It is not uncommon for an accident that causes physical harm to also lead to mental health issues, like post-traumatic stress disorder. The pain and frustration that comes with ongoing medical treatment and difficult rehabilitation can cause someone to develop an anxiety disorder or depression.

There can be less direct impacts as well. You may know, or have heard of, someone who was injured in an accident and could no longer participate in their usual sporting activities, enjoy family outings or even return to a job they loved. These losses can lead to an injured person becoming frustrated, lonely, anxious, or depressed.

Where an injured worker develops a mental health condition resulting from a workplace accident in which they were injured, this is called a secondary psychological injury.

Our no win-no fee lawyers can advise you whether your personal injury claim could also include compensation benefits for any secondary psychological injury you have suffered.

How do you prove a psychological injury?

A psychological injury is generally treated like any other injury or disease suffered at work when it comes to making a workers’ compensation claim.

You need evidence from suitable medical professionals to establish what type of psychological injury you have suffered, how serious it is and confirmation it arose through work duties. Your treating doctors will also need to provide details of how long your treatment will need to last, whether you are likely to recover, what other support you might need in the future, and what you need from your employer to be able to return to work safely.

There are two ways in which an injured worker can claim compensation against their employer.  The first is a statutory claim (an entitlement to benefits under the workers compensation legislation).  The other is a ‘common law’ claim (or a court claim).

WorkCover Statutory claim:

The vast majority of employers insure their workplaces with Workcover Queensland.  For that reason the bulk of workers compensation stress claims are dealt with by Workcover.  Some larger national or international employers self-insurer.  Those claims are dealt with internally through them.  

The statutory scheme is a no-fault scheme.  So you do not need to prove your employer did anything wrong to be eligible for this type of claim.

A workplace psychological injury claim does require you to show that your injury arose out of, or in the course of, your employment though. This means that whatever caused you to develop a mental health problem must have occurred at work or while you were performing work duties. Your employment does not need to be the sole cause of your condition but it must at least be a significant contributing factor to the illness developing.

Psychological claims are different from other personal injury claims because the law does not allow claims for psychological injury caused by reasonable management action taken by your employer in a reasonable way. This includes management actions such as refusing a promotion, changing your work location, or even dismissing you, if it was a reasonable thing to do and was done in a reasonable way.

Whether management action is reasonable in the circumstances of your case can be difficult to assess, especially if you have been seriously impacted by it. An experienced legal practitioner can help you to determine where you stand.

Approximately 55% of all psychological claims which are lodged by Workcover Queensland are rejected.  So getting the key evidence to prove your claim is critical.

Court claim (or Common Law claim):

A claim through the court system - or ‘common law’ claims - require you to prove that your someone is at fault, usually your employer. These claims are normally based on the legal principle of negligence.

Successfully proving negligence involves submitting evidence into court that establishes three facts.

  1. Your employer had a duty or responsibility to take care of you - the law generally says that all employers have a duty to care for their employees, so proving this is often straightforward;
  2. Your employer failed to properly take care of you, because they didn’t take the type of care that a reasonable employer would take in the circumstances; and
  3. Your injury was caused by your employer’s lack of care.

Getting the key evidence to prove each of these elements is incredibly important.  If you can, then the next step is to prove what your losses are.  More evidence about the long-term impact of your condition, your financial losses, medical costs and so are needed.

Going through the common law system  can be daunting and the procedure and documents can be complicated and confusing.  Many people find it best to have a lawyer assist them if they want to take a court case for psychological injury.

When will my Workers Compensation claim end?

If Workcover accepts your statutory claim you will be entitled to ongoing compensation for lost earnings and medical costs.  That will cease when it is determined that any incapacity from the work-related condition has stopped.

If you have ongoing long-term problems you technically have up to five (5) years to continue to claim. However, more typically at some point Workcover will seek medical evidence to establish that your condition has reached the stage of ‘maximum medical improvement’ (i.e. when it is thought that your condition has stabilised).  When they do you will be assessed by the Workcover Medical Assessment Tribunal (three psychiatrists).   They will make a finding about what your condition is, whether it is a permanent one and assess your degree of impairment. 

Those details are then confirmed in a document called a ‘Notice of Assessment’ which is then issued to you by Workcover. Broadly speaking, you have no real right to have that reviewed or appealed (there can be rare exceptions to this).

The MAT assessment is then used to form the basis of a lump sum offer.   It is a monetary offer of compensation.  At that point your entitlement to ongoing weekly benefits and medical costs ceases.

What to do when Workcover make a Lump Sum Offer?

Typically, you will need to make a decision whether to accept that lump sum offer or to reject it and bring a common law claim for damages.  In most cases you cannot do both. The common law claims are generally more generous in the amount of compensation involved but come with the extra requirement of having to prove your employer was negligent.

In serious cases (where the assessment of the degree of permanent impairment is above 20%) you may be entitled to take the statutory lump sum offer and make a common law claim.

Because of the serious consequences involved it is highly recommended that you seek some advice from an experienced personal injury lawyer about which option is best for you given your unique circumstances.

Time limits for work psychological injury claims

Time limits for personal injury claims are strict.  The different types of claim have their own time limits to consider.  

For statutory claims for worker’s compensation, there are shorter time limits – usually a claim must be lodged within just six months.

For common law claims, generally a person suffering an injury has three years to claim compensation in court.   If legal proceedings are not commenced within that time you will normally lose your right to claim.  The three year period begins from the time your injury/condition first started.   

Where a psychological  comes from a single incident it is usually quite straightforward to work out when to lodge your claim. But claims for psychological injuries in the workplace can be more difficult, especially if mental health problems develop over time.

See us for a free initial consultation and our psychological claims lawyers can give you the advice you need to ensure your rights are preserved.

How are psychological injury payouts calculated?

For common law claims,  compensation benefits for psychological injury can be paid for:

  • Lost wages or earnings (in the past and into the future);
  • Medical expenses, including consultations with doctors, psychologists, or psychiatrists;
  • Medication;
  • Household and other expenses;
  • Pain and suffering.

The amount of compensation you are able to receive will depend on the seriousness of your injury, your prognosis (how likely you are to recover), and your personal circumstances. It will also depend on having the right evidence, or proof, about your condition, how it has impacted your life and what your ongoing treatment needs are going to be.

The most important aspect of your compensation benefits is that they enable you to get the help you need to recover as quickly and completely as you can.   An inadequate compensation payment will not let you achieve that.

Evidence from medical professionals, such as your treating doctors and specialist medico-legal experts, is very important and will need to be prepared and submitted in your claim.  Sometimes predicting the loss of earnings into the future is simple – if your earnings were going to be the same as they had been.  

More commonly though, prior to suffering a psychological injury, people will have had a career path in mind and ambitions to advance their career and earnings.  

That can be overlooked by insurers.  That’s why it’s important to find the right lawyers who will help you prove your true losses over your future working life and to present the case in the best light – to get you the financial recovery you deserve. 

Mental wellbeing resources

The following organisations are available to offer support if you are experiencing mental health issues:

●  Lifeline - 13 11 14

●  Beyond Blue - 1300 224 636

●  Workers’ Psychological Support Service - 1800 370 732

●  MATES in construction - 1300 642 111

Posted by Chris McManus Principal

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Disclaimer: Please note, this content is designed as general information only and does not constitute legal advice. While we make every effort to fact check and keep items up to date, legislation may change from time to time. For advice on your specific situation then please contact us.
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