1. Work Related Mental Injury
Dr Kris Fernando National Psychology Advisor
Peta Levin, Branch Psychology Advisor, Dunedin Service Centre
Presentation to NZCCP March 2011 .

2. Agenda Recap on mental injury Work-related mental injury
Definition and Cover criteria
Work-related mental injury
Cover criteria, definitions
Reports

3. Recap on mental injury Cover is available for mental injury:
because of physical injuries for which the person has cover including injury from accident, treatment injury etc
sensitive claims
work related mental injury
Note: criteria must be considered in all cases
Sections 21 and 21B of the Act provide details
All of you will be aware of the mental injury provisions of ACC, but just to recap briefly cover is available for a mental injury if it is suffered by a person:
because of physical injuries suffered by the person, Section 26(1)(c)
In the circumstances described in Section 21 ‘certain criminal acts’ – ie a sensitive claim
In the circumstances of Section 21B ‘work-related mental injury’. ie from October 2008 a person at work who sees, hears or experiences directly a sudden traumatic event may have cover for a mental injury
Of course all claims for a personal injury, including a mental injury must be considered against the relevant criteria. For sensitive claims and WRMI the relevant parts of the Act are Sections 21 and 21B , which provide details about the circumstances where a client may have cover.

4. Mental Injury: Definition
mental injury defined in the AC Act 2001
Section 27: Mental Injury means a clinically significant behavioural, cognitive, or psychological dysfunction
Recognised psychiatric/psychological condition:
Qualified person to provide assessment and report - Criteria
The mental injury has to be a clinically significant behavioural cognitive or psychological dysfunction.
In other words something that is clinically significant requires a report from someone who is suitably qualified such as a psychiatrist or psychologist to diagnose the mental injury.
If the mental response is less than these, for example transient feelings of anger, humiliation, fear, embarrassment or shock, then it is not a mental injury and does not come under the Act.

5. Sensitive Claims
Section 21: Cover for mental injury caused by certain criminal acts
No physical injury required
Does require that an act be performed on the client / victim by another person, and
A causal link between the act and the mental injury
The act is of a kind described in Schedule 3, major sex crimes such as sexual violation and indecent assault and others
Sensitive claims are one way that cover for injury is granted. The Act does not describe these as sensitive claims but rather as “mental injury caused by certain criminal acts”, the relevant part of the Act is section 21.
A mental injury caused by a sexual offence in Schedule 3 is covered even if there are no physical injuries involved. All that is required is that the act performed on the victim comes within the description of an offence listed in Schedule 3, and of course there needs to be a causal link between the act and the mental injury.
[Section 21: Cover for mental injury caused by certain criminal acts
(1) A person has cover for a personal injury that is a mental injury if—
(a) he or she suffers the mental injury inside or outside New Zealand on or after 1 April 2002; and
(b) the mental injury is caused by an act performed by another person; and
(c) the act is of a kind described in subsection (2).
Within the description of an offence listed in Schedule 3 – these are certain offences commonly described as major sex crimes such as sexual violation and indecent assault but it also includes Infecting with a disease, under s 201 of the Crimes Act 1961 and female genital mutilation under ss 204A and 204B Crimes Act 1961.]

6. Mental Injury as a consequence of physical injury
Section 26(1)(c)
mental injury suffered by a person because of physical injuries suffered by the person
Note: Woodd and other cases
ACC provides cover for mental injury if there is a direct causal link to a physical injury for which the person has cover
Referred under Psychological Services 6 hours – MIO1 form
Under this subsection “personal injury” is limited to physical injuries to a person and any mental injury that is suffered because of the physical injuries suffered to that person. 26 (1)(c)
The words “because of” necessitate a causal connection between the physical injury and the mental injury. In other words there must be a direct causal link between a physical injury and the mental injury. You will be aware that the physical injury in this cases must be a “material / necessary cause” of the mental injury.
That is taking account of the evidence and the assessment of the expert – is it probable that the mental injury was caused by the physical injury?
Please note that a similar test is applied to most / all issues relating to cover and causal links with ACC.
Cadenhead J: “It is necessary for a claimant to show on a probability basis that the mental injury was directly caused by the physical injury suffered. Indirect causation, such as brooding or worry, is not sufficient.” [seddon 2004]
In Woodd: the appellant had been assaulted and suffered post traumatic stress disorder following the robbery of a pharmacy where she worked. The assaults committed by the offenders were not indecent but she was held at gunpoint, pushed around and suffered bruising.

7. Work-related Mental Injury
Section 21B introduced in 2008
When the mental injury is caused by exposure to a traumatic event in the course of employment
Came into force on 1 October 2008
Psychiatrists – mental injury reports
The [IPRC Amendment Act] 2008 amendment introduced cover for mental injury caused by exposure to a traumatic event in the course of employment.

8. WRMI: Background
Experiencing traumatic events can affect people from no impact to severe long-term problems
Prior to 1 October 2008 there was no ACC cover for mental injury caused by exposure to a sudden traumatic event at work
Inconsistent with a number of overseas jurisdictions
High profile cases (milk tanker driver, train driver)
As we all know experiencing a traumatic events can affect people. The impact of exposure to such traumatic events on an individual can vary from nil to severe long-term problems.
Sometimes people are exposed to traumatic events in their work and that may cause a mental injury, and not physically injured. Prior to 1 October 2008 if the person received treatment for a mental injury that occurred from exposure to a sudden traumatic event at work there was no ACC cover for that mental injury. This is not consistent with a number of overseas jurisdictions, including Canada and Australia. The point being that the event at work has caused an injury albeit one without an associated physical injury.
Within New Zealand there have been a number of cases (eg milk tanker drivers or train drivers) who have experienced a severe traumatic event where their vehicle has been used as an instrument of suicide or they have inadvertently been involved in a crash where others are injured. Yet the driver may suffer a mental injury as a consequence and that needs consideration. These types of cases prompted, the Ministerial Advisory Panel on Work-related Gradual Process, Disease, or Infection to recommend changes to the Minister for ACC in 2004.

9. When: Date of injury
WRMI: the date on which the person first receives treatment for that mental injury “as that mental injury”
Same provision for sensitive claims
Note: for WRMI the date of first treatment must be after 1 October 2008
The date of the injury is important in determining whether the person has cover. ACC has different ways for determining the date of injury depending on the nature of the claim. WRMI - for these claims the date of injury is when the patient is first treated for the mental injury. This is the same as for the date of injury for sensitive claims.
This will not be of concern to clients that experience a traumatic event after 1 October, but for those claims lodged where the event did occur prior to 1 October we will need your help in determine when the first treatment for the mental injury took place.
[note: The date of injury is the date of first seeking treatment for that mental injury “as that mental injury”. The reference to “as that mental injury” is to deal with the situation where treatment may have been sought for various aliments but no connection had been made at that time between those ailments and the prior events / sexual abuse.]

10. Who & Where: Relation to work
A person has cover for mental injury if:
they suffer the mental injury inside or outside New Zealand, and
It is caused by an event that meets criteria of ‘work-related personal injury: section 28(1)
Section 28(1)
At work
On a meal break / rest break
Travelling to or from work
Travelling from work to get treatment for a work-related personal injury
WRMI only applies to people in work, so this slide provides the background to how ACC defines work.
Essentially this section [28 (1)] defines what is work-related and what is not work-related. For example having a meal break still means you are at work and travelling to get treatment for a work-related personal injury means you are still at work.
Similarly the no-fault basis of ACC means that a person doing something outside of OSH regulations does not disqualify them from cover for a WRMI.

11. What: Defining the event
Section 21 (7) An event is:
Sudden event or a direct aftermath of a sudden event
Example: train driver witnesses a suicide and emergency workers who attend
A series of events from the same cause or circumstance that comprise a single event
Example: shop keeper accosted by an armed thief, bound and forced into a cupboard until the next day
Not a gradual process
Example: office worker with constant work demands
Turning now to definitions of the event itself, this must be a sudden event, or the aftermath of the event.
The obvious example is a train driver who witnesses a suicide, that is a person uses the train as an instrument of suicide by throwing themselves under the train. This event also includes an aftermath because the train will need to be stopped and the victim extracted. This will expose other workers to the event – in other words the event continues through to the direct aftermath of dealing with the deceased and the clean-up.
A series of events from the same cause or circumstance can also comprise a single incident or occasion. The example here is of a shop keeper who is closing his shop at 11pm. But before closing the door, he is accosted by an armed thief, then bound and gagged and forced into a small cupboard at the back of the shop. He is forced to remain in this position until 8am the next morning when he is found by another employee. This meets the criteria as this is a series of events that together can be considered as a ‘single event’. This example of a series of events is not a gradual process because they relate to a incident or occasion.
Section 21 (7) specifically excludes a gradual process, which means events that recur over a longer period of time and have a cumulative effect. For example an office worker under constant stress at work. This does not meet the criteria as the constant work demand is not a single event, but occurs over a period of time.
Section 21B (7) In this section, event—
(a) means—
(i) an event that is sudden; or
(ii) a direct outcome of a sudden event; and
(b) includes a series of events that—
(i) arise from the same cause or circumstance; and
(ii) together comprise a single incident or occasion; but
(c) does not include a gradual process.

12. Cause: Sudden and traumatic
A sudden traumatic event that could reasonably be expected to cause mental injury in people generally
By that we mean:
outside the range of ‘normal’ experience
capable of provoking extreme distress in most people
involves a real threat of significant harm
would induce feelings of horror, alarm and shock in most people.
By this we mean that the sudden, traumatic event is:
outside the range of ‘normal’ experience, and
capable of provoking extreme distress in most people, and
involve a real threat of significant harm to self or others, and
would induce feelings of horror, alarm and shock in most people.
Workers in emergency services are an obvious group exposed to traumatic events, but so might workers who witness forestry or commercial fishing accidents and perhaps even mental health workers dealing with threatening incidents that leads to real physical harm to others.

13. Causes injury in “people generally”
could reasonably be expected to cause mental injury in people generally
Does not mean:
people with similar underlying mental health conditions, or
people in similar occupations, or
the individual client
When considering this we need to make a comparison with events that are not likely to cause a mental injury in the general population, a population health approach.
By contrast it is not appropriate to make a comparison with:
people with similar underlying mental health conditions, or
people in similar occupations, or
the individual client.

14. Causal link: Event to injury
The person has been directly exposed at work to a sudden traumatic event that could reasonably be expected to cause mental injury to the general population.
Does this person have a clinically significant behavioural, cognitive, or psychological dysfunction?
Was this mental injury caused by the sudden traumatic event ?
And, would this event cause a mental injury in people generally?
As with sensitive claims there is a need also to establish a causal link between the event and the mental injury: in terms of WRMI, a person has cover for mental injury if they have been directly exposed at work to a sudden traumatic event that could reasonably be expected to cause mental injury to the general population, AND the person has a clinically significant behavioural, cognitive, or psychological dysfunction caused by that event.
This is a key aspect of ACC reports

15. Reports: ACC 4247
Psychiatric Assessment Report - Work-Related Traumatic Event
Guidelines for completion
Section A: Key terms and specific guidelines
Section B: ACC 2447 Guidelines for completion
Normal distress vs persistent dysfunction
Collateral information
Pre and post injury impairments
Causal link vs final straw
Routine assessment
Additional issues of relevance to WRMI include:
Causal link vs final straw: Was this mental injury caused by the sudden traumatic event ? Or was the event a trigger or ‘final straw’ in a succession of stressful events? Assessing Pre and post injury impairments may help here.
Risk assessment is also included in the report (see also page 2 of the guidelines): we ask for example that assessments of symptom exaggeration by the client become a routine part of the process. Occasionally this can be a feature of a clinical presentation and if it occurs this will undermine the ability of the clinician to draw conclusions about the psychiatric condition or the event. ACC is moving to have routine assessments of this undertaken and may seek further opinion where required in individual cases.
[careful justification of their opinion with details of client reports and looking for consistencies and inconsistencies in the client accounts within and between interviews]

16. Exclusions to WRMI Not at work
Event not directly experienced, seen, or heard
Person not in close proximity to the event
Temporary distress or no mental injury
Mental injury not caused by the event
Event is not significant enough to cause a mental injury in the general population
Gradual process
It may be helpful to review exclusions to WRMI, that is when would the person with a mental injury not have cover under section 21B. Remembering that the WRMI provisions cover people who have not been physically injured but have a mental injury alone, there is no cover for a WRMI if:
The person was not at work when they witnessed the event, or
The person did not directly experience, see or hear the event, or
The person was not in close proximity to the event when it occurred, or
The person did not develop a mental injury or only developed temporary distress after the event, or
The mental injury was not caused by the traumatic event, but was due to some other cause, or
The event is not significant enough in its own right to cause a mental injury in the general population, or
The mental injury was the result of a gradual process rather than a single traumatic event.

17. Contact Details Kris Fernando kris.fernando@acc.co.nz
Peta Levin
Duncan Frazer
Peter Jansen

18. Branch Advisory Psychologists
Vas Ajello Whangarei/Henderson
Ann Galloway Auckland/Nth Harbour
Duncan Frazer Counties Manukau/IA/LS
Rachel Vaughan NP/PN/Mast.Wanganui
Erin Eggleston Rotorua/Whakatane/Taurang
Jane Lennan Hamilton/Gisborne/Haw Bay
Christ Huelsmann Well/Porirua/Hutt/Nelson
Gillian Pow Sensitive Claimss
Fran Brinn Sensitive Claims
Annie Maillard Greymuth/Nthwood/Christchurch
Jim Hegarty Tim/Dun/Alex/
Peta Levin Dunedin Service Centre