How to get compensation for psychological injuries?

Mental health claims are on the rise. If you need to get paid for your psychological injuries and are feeling frustrated, don’t suffer mental illness in silence! Read on to find out more or talk to mental injury lawyers at Foyle Legal.

What is a psychological injury claim?

A psychological injury claim occurs in circumstances where a person is psychologically affected by certain circumstances and as a result, they suffer loss or damage.

Usually, the injured person will seek treatment for their mental health problem and will be given a diagnosis of their mental illness, some common examples are major depression, anxiety disorder or post-traumatic stress disorder.

If the psychological injury occurs at work it may give rise to a workers compensation claim. If it happened in another way, for example, due to a car accident, it could give rise to a common law claim.

Is depression a recognised psychiatric injury?

The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) is usually used in Western Australia to assess medical conditions. The DSM 5 includes the following recognised psychiatric illness conditions:

• Major Depressive Disorders;
• Major Depressive Episode; and
• Adjustment disorder.

It is important to see a psychiatrist and psychologist if you believe you have psychological injuries. They should be able to provide you with the correct diagnosis.

Can I sue for emotional distress in Australia?

As a general principle of personal injury law, if you suffer an injury due to the negligence of another person, you can sue that person for the loss and damage incurred. It is important to realise that if you bring such an action then you bear the burden of proving that negligence has caused the damage, and you must also prove any loss you have suffered on the balance of probabilities. There are some important considerations that apply:

1. There is usually a “threshold” for non-pecuniary loss (which includes pain and suffering, loss of enjoyment of life and loss of amenities) in motor vehicle claims, public liability claims and medical negligence claims. Some emotional trauma or emotional distress injuries will not overcome this threshold.
2. Section 31 of the Civil Liability Act 2002 which applies to most public liability claims and medical negligence claims says “There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.“
3. The way in which courts approach a claim for emotional distress (without other physical injuries) can be unpredictable.

It is a good idea to get advice from compensation lawyers with knowledge regarding psychological injuries before commencing a common law claim.

Is pure mental harm compensable?

Pure mental harm is usually compensable where the injured person can prove that their psychiatric injuries were caused by the negligence of another person. The Civil Liability Act 2002 will govern how the courts approach most public liability claims and medical negligence claims.

Section 5B of the Civil Liability Act 2002 says that a person will not be negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and in the circumstances, a reasonable person in the person’s position would have taken those precautions.

How do you prove psychological injury?

Liability in most personal injury legal claims is determined:

1. Based on documents and oral evidence to prove the facts giving rise to the claim actually occurred;
2. Medical evidence such as reports from a General Practitioner, Psychologist or Psychiatrist to show the extent of the injury; and
3. Documents such as tax returns and payslips to show the extent of any economic loss.

Many people who claim compensation for a psychological condition have a background of psychological conditions. It is important to obtain evidence to show that they either have a new condition or the circumstances of the claim are a significant contributing factor towards their current condition.

In most personal injury claims, the insurer may retain an independent medical expert to conduct a medical-legal assessment of the psychological injury. It is important to note that these IMEs are important. And, you should consult a compensation lawyer first before attending the IME.

Making a Workers’ Compensation Claim for Psychological Injury

Workplace psychological injury claims usually arise from workplace bullying, physical harm (such as an attack) and sometimes even sexual harassment.

To make a claim for workers compensation, eligible workers need to complete a Form 2B claim Form and get their doctor or medical professional doctor (such as a psychiatrist) to complete the First Certificate of Capacity. The injured worker must then provide both of these documents to their employer.

It is important to realise that most psychological workers compensation claims are not accepted. Many claims are refused due to the excluded categories of claims in Section 5(4) of the Workers Compensation and Injury Management Act 1981.

• If you have made a psychological claim for workers compensation and liability has been pended or disputed, then Foyle Legal can help to advise you about whether you can seek compensation successfully through WorkCover WA – the dispute resolution authority for workers compensation claims.
• If you have sufficient materials (such as medical reports) then Foyle Legal can advise you more about how much compensation is likely to be paid in your case.

If the claim is accepted the injured worker will be eligible for statutory benefits which potentially include a permanent disability (permanent impairment) payment, weekly payments of compensation, medical expenses and rehabilitation expenses.

No Win, No Fee Lawyers

Under the No Win, No Fee arrangement, you won’t need to pay Foyle Legal’s Legal fees (the fees that we charge for the work we do on your claim), unless we get you a settlement amount.

Your lawyer will take you through this arrangement in more detail including any terms and conditions in your obligation free first initial consultation.

For quick information on our No Win, No Fee terms and disbursements, please visit our No Win No Fee Lawyers Page 

Motor Vehicle Compensation Claims for Psychological Trauma – What You Need to Know

Motor vehicle accident cases will often result in physical injuries as well as psychological trauma. If this is the case, reports should be obtained about both injuries before a settlement of the case can be achieved.

In other, more unusual situations the injured person has physical injuries sustained in the car accident. Those physical injuries recover, but the person is left with mental stress and an ongoing psychological condition. In these cases, it is very important to get medical reports explaining why the car accident has been a traumatic event and that as a result, the injured person has ongoing psychological problems.

What is a permanent psychological injury?

A permanent psychological injury is a psychological or psychiatric condition that is likely to persist for the foreseeable future. Usually, in a psychological injury, this occurs once:

1. The person has received treatment from a General Practitioner, psychologist and psychiatrist;
2. They have attempted psychological treatment such as cognitive behavioural therapy and psychiatric treatment such as anti-depressants; and
3. The person has reached a point where they are unlikely to improve further.

This stage usually occurs near the end of the entire process for a claim and is referred to as “medical stabilisation”. In worker’s compensation claims it is referred to as “maximum medical improvement” (MMI).

In worker’s compensation claims MMI occurs “when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.”

Once medical stabilisation occurs an expert, such as a psychiatrist, can predict a person’s whole person impairment (workers compensation claims) their prognosis going forward and the extent of any future loss that they will suffer.

Compensation payouts for psychological injury

Dispute Against Workers Compensation Insurer

Most work-related psychological injury claims are denied by the workers compensation insurer. It is important to know that many of these psychiatric injury claims are challenged through WorkCover WA by personal injury lawyers who are specialised in workplace injuries. The outcome of most compensation law cases will depend on the strength of the claim.

Most applicants represented by Foyle Legal receive a lump sum compensation payout from the workers compensation insurer. If you are struggling in getting compensation for a WorkCover mental health claim, please contact a personal injury lawyer for an obligation free consultation. Our trained compensation lawyers can take care of the whole process for you!

Common-Law Claims

Most other personal injury claims are common law commons. Such as motor vehicle accidents, public liability claims, and medical negligence claims. Common law claims will often resolve either out of court or in common law proceedings.

In those cases, whether a lump sum payout can be achieved depends on how strong the case is in negligence, the extent of the injuries suffered, and the quality of your legal presentation. Good personal injury lawyers often have a network of professionals that help with improving evidence and making the claims process as smooth as possible.

Dealing with psychological injury claims

• Seeking Medical Treatment for Mental Injury

In workers compensation claims the treatment process usually begins with attending a General Practitioner, who will provide a referral to a psychologist and a psychiatrist as required. General Practitioners can provide a medical certificate following each attendance. The records of General Practitioners can be helpful to show how an injury progresses.

In other injury claims such as motor vehicle accident claims, public liability, medical negligence and criminal injuries the treatment process is the same. It is important to consult medical providers on a regular basis to have a good record of your medical treatment.

If you do not attend for medical treatment then you may not be able to get the maximum compensation for your injury. This is because the other side may think you do not need medical treatment as your injury is not serious.

• Claiming Compensation for Psychiatric Illnesses

Psychological illnesses are usually not as obvious as physical injuries. It is important to advise of a potential claim as soon as possible following an event.

Foyle Legal are personal injury lawyers with extensive experience in the areas of psychological injury claims. If you have made a claim, dedicated compensation lawyers at Foyle Legal can assist you with the legal process on a no win no fee process. In most claims, the insurer will make a contribution towards legal fees usually meaning that there is not much of a contribution towards legal costs from your settlement.

Change of Workers Compensation Law

The Workers Compensation and Injury Management Act 2023 and supporting regulations will take effect on 1 July 2024. This article applies to the workers compensation law before 1 July 2024 under the Workers’ Compensation and Injury Management Act 1981.