This impossible dichotomy was brought into the Victorian legislation in 1996 and has since metastasised. The then Minister for WorkCover stated (Hansard Victorian Legislative Council Page 1245 – 10 December 1996)
In June 1996 the surplus of assets over liabilities stood at something like $55 million. During the course of 1995-96 it was evident that the cost pressures were growing, and during the five months to November that pressure has further accelerated. The increases in total weekly benefits, in lump sum payments and legal and medical costs can be attributed largely to the extraordinary growth in the number of claimants classified as seriously injured. During 1995-96 the numbers of serious injury classifications grew by a net 1200 from 2910 to 4109 — a 41 per cent increase.”
the number of workers who have been classified as seriously injured through the compounding of psychological or psychiatric factors with a primary physical injury having risen from less than 1 in 8 some 2 years ago to 1 in 4, and the figure is still rising.
The minister went on to say
the reality is that certain lawyers and doctors are abusing the system by using the secondary psychological or psychiatric factors, such as depression, to achieve serious injury status for their clients. I can do no more than quote … comments …made by Mr Koutsoukis from Maurice Blackburn, who stated on radio during the past few days:
We previously got them over the serious injury line by saying … that person is depressed.
Although the whole notion appears unjust it has been incorporated into the Victorian legislation including the Accident Compensation Act, the Transport Accident Act and the Wrongs Act. It has also been incorporated into New South Wales legislation. The argument is that build within the AMA Impairment Guides with regard to physical injury is some component for pain and suffering and that to also include a percentage related to psychiatric impairment would be double dipping.
in consultation with WorkCover and TAC Nigel Strauss and I developed a document called “Annotations for determining non-secondary psychiatric impairment”. Even using that document there are two areas which I find particularly difficult to tease out. I can give you two examples.
Bill was a 50-year-old man who had a back injury at work in a foundry. No real surprises there. He had physiotherapy treatment I was sent back to work after six weeks with a modified duties certificate. The stated that he should not lift more than 5 kg and should avoid repetitive movements, twisting and bending and should be able to change positions as required. There was realistically no meaningful work for him to do. His employer and his fellow employees resented him being back at work because there was more pressure on his thigh workers and his employer felt he was paying him but he was not producing. After a while his fellow workers began criticising Bill for not getting better and their complaints became quite overt. Bill was dreading going to work especially because his employer had him sit in the lunchroom most of the day reading the paper. The relationship between Bill, his employer and his fellow workers broke down and he ceased work in a bad state. He has lost all trust in his employer and has refused to go back to work there. He has limited skills and fewer job opportunities. He has applied for a serious injury application. He still has some back pain but his major concern now arises from his depression coming from what happened after he returned to work. Unless he has made a separate claim any psychiatric impairment has to be secondary to physical injury. This always seems inequitable to me.
The second situation that I find very difficult is those people who have made a personal injury claim who, in Victoria, have to exceed a threshold of 10% psychiatric impairment not secondary to physical injury. For many their claim arises out of a physical injury that may have settled.
Stella, an operating theatre nurse, had been treated for two or three years with Zoloft for depression and had developed a severe widespread rash. She had been seen by dermatologists and it was some time before the relationship between her rash and the Zoloft was recognised. Her Zoloft was stopped and the rash disappeared but in the meantime she had endured a great deal of discomfort, time off work, irritability and her quality-of-life and diminished markedly affecting her relationship with her husband and her children and she had difficulty coping with her work as an operating theatre nurse. She made a personal injury claim against her psychiatrist. The problem was that the rash is now gone but she continues to be distressed and miserable because of what she experienced. To my mind, her psychological response is secondary to the toxic effects of the drug and therefore does not count with regard to psychiatric impairment. Is that fair? I don’t think so but I don’t know how else the matter can be dealt with. What are your thoughts?