WorkCover common law claims for psychological injury
If you’ve suffered a psychological injury related to your employment, you may be entitled to pursue a common law claim.
In order to succeed in a common law claim for psychological injury, you need to show that you have a ‘serious injury’ and that there was negligence on behalf of your employer or another party that contributed to your psychological injury.
This page will explore psychological injury common law claims further.
Note: this page will use the terms psychological and psychiatric interchangeably. For the purposes of this page, both terms mean the same thing.
Table of Contents
You should lodge an initial WorkCover claim
If you believe you’ve suffered a psychological injury related to your employment and wish to pursue a common law claim, you must start by first lodging the initial WorkCover claim form and having your claim accepted.
The form looks like this:
It’s the same form that a person would use had they suffered a physical injury related to their employment.
Once the claim form has been lodged, it will be assessed by the WorkCover insurer and either accepted or rejected.
As part of the assessment process, are you likely be required to see a psychiatrist for a medical assessment (called an indepedent medical examination or IME).
Typically what also happens is the insurer will organise a circumstance investigation report to be completed.
This involves statements being taken from people within the employer and yourself (should you wish to participate) regarding the employment issues you say resulted in the psychological injury.
A report will then be produced that outlines the relevant factual matters.
When the insurer has made a claim determination they will contact you in writing and let you know whether they have accepted or rejected your claim.
Single incidents or a psychological injury that developed gradually over a period of time?
For the purposes of a WorkCover claim related to psychological injury (this includes a common law claim), it does not matter whether there was a single incident that led to the psychological injury or whether it was something that occurred and developed over time.
Either is fine for the purposes of WorkCover.
Also, it could be a combination of the two.
For the purposes of having a WorkCover claim for psychological injury accepted, it doesn’t matter.
Once the psychological injury is stabilised
Once the psychological injury has stabilised, that is it is not improving or getting worse to any significant degree, you can then look at pursuing lump sum compensation.
When it comes to the issue of stabilisation, in relation to physical injuries the WorkCover insurer will not assess an injury, in most cases, where less than twelve months has passed since the date of injury.
When it comes to psychological injuries, the same rule applies however psychological injuries can often take longer than physical injuries to be deemed stable.
This is due to the nature of psychological injuries.
Whether the psychological injury or not is stable really is a medical question best answered by you’re treating practitioners.
If you are going to undergo further treatment that may significantly alter your current presentation then your psychological injury is probably not going to be considered stable.
Once the psychological injury is considered to be stable, you then need to make a decision as to whether you pursue an impairment benefit lump sum claim or alternatively, skip the impairment benefit lump sum claim and pursue a common law claim.
Which way you go really should depend upon the individual circumstances of your matter.
Generally speaking however, when it comes to psychological injury matters, the best idea is to pursue an impairment benefit first before proceeding with a common law claim.
Being medically assessed as having a 30% whole person impairment
In order to be entitled to lump sum compensation under impairment benefit claim, you need to be assessed as having a 30% or greater whole person impairment rating.
Your whole person impairment rating is determined by an independent medical examiner.
If you are assessed as having a whole person impairment rating of 30% or greater in relation to your impairment claim, then you are considered as having a serious injury which is important in terms of your common law claim.
Why this is important will be explained later on down the page.
In order to be assessed as having a 30% impairment and to be considered as having a serious injury, the 30% needs to be all primary psychiatric impairment and any secondary psychiatric impairment needs to be disregarded.
When you are assessed by the independent medical examiner, they will determine any primary psychological injury and secondary psychological injury related to your employment.
This is important.
An example of primary psychiatric impairment would be if you were subjected to ongoing bullying in the workplace and as a direct consequence you developed PTSD and depression.
An example of secondary psychiatric impairment would be if you also had a physical injury, and that as a consequence of that physical injury (that is, secondary to that), you developed depression.
Secondary psychiatric impairment and is not compensable under an impairment claim for psychological injury.
Common law claims for psychological injury
Two things are required to succeed in a psychological injury common law claim.
The first is that you have suffered a serious injury.
The second is that your injury was contributed to by the negligence of your employer or another party.
Serious injury in psychological injury matters
As mentioned above, if you have been assessed as having a 30% or greater whole person impairment rating relating to your impairment lump sum claim, then you are automatically deemed as having a serious injury for the purposes of a common law claim.
This is why, when it comes to deciding whether to pursue an impairment claim first or to skip the impairment claim if you wish to pursue a common law claim, it usually makes sense in psychological injury matters to pursue an impairment claim first.
Obtaining a serious injury certificate is a necessary step to turn in, more damages.
And if you are assessed as having a 30% or greater whole person impairment rating and you obtain a serious injury certificate, it can save you a lot of time in the overall scheme of your common law claim.
If you have not been assessed as having a 30% or greater whole person impairment rating, whether because you didn’t reach the threshold at the impairment stage, or because you elected to skip the impairment claim and proceed directly to a common law claim, you will need to show that you have a serious injury in another way.
This way is via what’s called the narrative test.
Put simply, the narrative test involves telling your story.
More specifically, it involves painting a picture as to how you were before the psychological injury and how you are now.
The bigger the difference between the two pictures, that is the greater the impact that the psychological injury has on your life, the more likely you are to be considered as having a serious injury.
Here’s a couple of examples.
Let’s say that you suffered a psychological injury at work but you believe that after some time away in a couple of months after some treatment, you likely to return to full time work in a new workplace really without too many ongoing issues at all.
This would likely not be considered to be a serious injury.
Compare this however to someone that has gone off work because of a psychological injury, and medical material suggests they will never return to work either in this previous role or in any role. In addition to this, the person will need ongoing regular treatment into the future.
This person would stand a much greater chance of being considered as having a serious injury.
A serious injury application needs to be made
Regardless as to whether you have been assessed as having a 30% whole person impairment rating or whether you are going down the narrative test path, you, via your your lawyers, will need to make was a serious injury application.
They’ll need to make a decision as to whether you satisfy the definition of a serious injury.
This application gets considered by the lawyers acting on behalf of Victorian WorkCover authority.
They have 120 days to consider your application and make a decision.
The decision is to either accept or reject that you have a serious injury.
If you have previously been assessed as having a 30% or greater whole person impairment rating for primary psychological injury, then while this step is still required, it is a formality as you will you will be provided with a serious injury certificate.
If a serious injury certificate is obtained
Then what will happen is that the matter will proceed to a settlement conference between the parties which will usually occur a few weeks to a few months after you have obtained a serious injury certificate relating to your psychological injury.
At the conference, the parties will try and negotiate a settlement of your matter.
Here is where the focus really shifts significantly for the first time from the issue of serious injury to the issue of negligence.
The conference will involve discussion regarding both the injury and the impact the psychological injury has on you in addition to the issue of negligence.
If the matter does not resolve at the settlement conference, there is nothing stopping the parties from continuing to negotiate after the conference.
However, after the conference they will be required to make written offers to each other. These written offers are called statutory offers and statutory counter offers.
If the matter then fails to resolve, the lawyers that are acting on your behalf will need to issue proceedings in either the County Court or the Supreme Court.
Generally speaking, at this point, your matter could be anywhere from 6 to 12 months away from hearing.
Any time prior to the hearing the parties can negotiate the matter.
They will be required to participate in a mediation that usually occurs a month or two, sometimes more, out from any hearing date.
If no serious injury certificate is obtained
If you do not obtain a serious injury certificate, either by way of the 30% impairment gateway, or via the narrative test and the other side rejects your serious injury application, then if you wish to proceed with your common law claim for psychological injury, you’ll need to issue proceedings to obtain a serious injury certificate.
The hearing will be primarily related to whether you have a serious injury or not. Negligence is not a key issue at this point.
You can expect this hearing to occur within about 6 to 12 months from when proceedings are issued.
If you succeed in obtaining a serious injury certificate at the hearing, then you will follow the process outlined above.
That is, because you have a serious injury certificate, you’ll go to the settlement conference and then if the matter doesn’t resolve at the settlement conference offers and counter offers will need to be made by the parties.
If the matter still doesn’t resolve then proceedings will need to be issued in either the County or Supreme Court to have the matter determined.
Two heads of damages, just like in physical injury common law claims
If you succeed in your common law claim, you can potentially be compensated for pain and suffering alone, or pain and suffering and economic loss.
Both serious injury and negligence are required
As mentioned, in order to succeed in a common law claim for a psychological injury, you need both a serious injury and for there to be negligence on behalf of your employer and/or a third party.
You need both.
You could have the strongest claim possible in terms of psychological injury (and serious injury), but if there is no negligence on behalf of the employer or third party, then you will not succeed in your matter.
And vice versa.
Usually, if the matter is to be contested by the other side, the fight will be in relation to one of these aspects – either serious injury or negligence.
Occasionally it might be in relation to both, but more often just in relation to one.
Success rates compared to physical injury matters
Something to consider in relation to psychological injury matters is that they are often more difficult to succeed in than matters involving physical injuries.
If you have suffered a psychological injury related to your employment, you can pursue and have accepted a WorkCover claim just as you would for a physical injury.
As part of that WorkCover claim, if your psychological condition can be considered to be a ‘serious injury’ and if there was negligence on behalf of the employer and/or a third party, you may be entitled to obtain lump sum compensation via a common law claim.