NSW POLICE ISSUES: NO COMPENSATION FOR PSYCHOLOGICAL INJURIES CAUSED BY THE REASONABLE ACTIONS OF THE EMPLOYER

Publish Date: September 22, 2005

Members of the New South Wales Police Service are frequently diagnosed with Psychological infirmities such as Post Traumatic Stress Disorder or Major Depression which are linked to their Police duties.

These infirmities are regularly caused by being exposed to numerous traumatic events over an extended period of time.  Psychological infirmities can, however also be caused by single events like motor vehicle accidents, assaults and being involved in life threatening incident. 

In order for a psychiatric infirmity to be accepted as hurt on duty, an officer must establish that his/her injury arose our of or in the course of the performance of his/her duties and further it must be established that the member’s employment was a substantial contributing factor causing the injury or aggravating a pre-existing condition/injury. 

The NSW Police Service often relies on a statutory defence under Section 11A of the Workers Compensation Act, 1987 (this applies to both pre and post 1988 officers).  Where a psychological injury is wholly or predominantly caused by the reasonable actions of the employer concerning transfer, demotion, promotion, performance, discipline, dismissal etc., the condition/injury is not compensable as workers compensation.

Whether an officer is suffering from a condition/injury the cause of such is a medical issue to be determined by doctors. Whether the requirements of the Workers Compensation Act are met are issues for legal opinion.  

Often a psychological condition comes to light as a consequence performance/discipline issues and it is assumed that the officer’s shortcomings in performance or discipline is the cause when in fact the performance or discipline issues are the symptoms of his/her condition. It is important not to jump to what might appear to be a logical conclusion. Medical and medical opinions are vital in determining an officer’s right to workers compensation.

Where an officer is in doubt about his/her workers compensation entitlements he/she should seek advice from the Police Association or Police Association Solicitors.

With psychological injuries increasingly becoming a substantial proportion of the workers compensation dollar and absenteeism it is important that employers and employees become better informed about psychological injuries so that they can be identified early and the appropriate treatment sought.

In certain cases, the New South Wales Police do not accept liability for psychiatric infirmities if they consider the infirmity arises as a result of the reasonable actions of the member’s employment.  Section 11A of the Workers Compensation Act 1987 covers this issue and refers to reasonable actions as transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal.  As a result, if the New South Wales Police obtain evidence that a member’s infirmity was caused by one of these actions, they will not accept liability at first instance. 

It is not unusual for members to initially self diagnose and believe their psychiatric infirmity has arisen because they were not granted a transfer or failed to win a promotion in their employment.  However, Specialist Consultant Psychiatrists often delve more deeply into a member’s diagnosis and link the infirmity back to numerous traumatic incidents over the member’s career. 

It is therefore important for members to not state that they believe their infirmities were caused by the reasonable actions of their employer and should instead seek a referral to medical specialist who can provide a medical opinion on the issue.  If a member does site the reasonable actions of their employer as a cause of their infirmity, the employer will immediately be put on notice that they may have a defence to the issue of liability. 

In summary, members should seek either advice from the Police Association, or their Legal Practitioner, before stating the reasons they believe caused their infirmity.   This could mean the difference between having liability accepted earlier in proceedings as opposed to having the issue run through the Appeal Courts for a number of years. 

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