Psychological Injuries: Onus on Pleader to Prove

13th January 2025
Category Compensation

The RMB Compensation Division explains how the no-fault workers compensation scheme works for psychological injuries:

Workers in NSW have the benefit of a no-fault workers compensation scheme. As long as the injury arose out of the course of the worker’s employment and that employment was a substantial contributing factor to the injury, the worker will be entitled to payment under the workers compensation scheme.

Entitlements include weekly benefits, payment of medical expenses and possibly lump sum compensation.

Psychiatric or psychological injuries are defined in Section 11A of the Workers Compensation Act as:

  • a recognised psychiatric or psychological disorder;
  • contracted or aggravated in the course of employment;
  • to which employment was the main contributing factor; and
  • include the physiological affects of such disorder (such as raised blood pressure, facial tics and insomnia).  

The purpose of Section 11A is to limit the prevalence of vaguely defined “stress claims”.  Being emotionally upset, angry, disappointed or feeling overworked will not meet the definition of “injury” for the purposes of the Act. 

Workers’ compensation insurers have only limited defences available to deny a worker’s claim. In cases of psychological injury, the insurer has an extra defence pursuant to Section 11A of the Act. This defence was raised in about 45% of the decisions published by the Personal Injury Commission in 2023 which dealt with psychological injuries. 

The Section 11A defence is that the worker’s injury was wholly or predominantly caused by the reasonable actions of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.

Section 11A is what is known as a disentitling provision meaning the onus is on the employer to establish the defence i.e. the employer must prove that their actions were reasonable. It is not for the worker to raise whether the employer’s actions were unreasonable, and brings to mind the old legal adage “he who pleads must prove”. 

The question of the reasonableness of an employer’s actions is an objective one. The Personal Injury Commission must decide whether a reasonable person in the employer’s position would consider the actions of the employer to be reasonable. 

There have been a string of recent decisions in the NSW Personal Injury Commission in respect of workers who have suffered psychological injury as a result of the employer’s implementation of government mandates and recommendations in respect of COVID-19 vaccinations. 

Each decision has turned on the individual facts of the case and the evidence relied upon by the parties.  Although Section 11A defences are difficult to maintain, the caselaw demonstrates that these defences can be upheld when there is strong factual evidence which supports the reasonableness of the employer’s actions. 

It is very important to obtain advice from experts in the field of workers compensation.  If you are an injured worker and wish to discuss your rights and entitlements on an obligation free basis, you can contact our office by phone on Freecall 1800 681 211 for a consultation, or use our 'Ask a Question' tool on our website.

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