Psychological Injuries & WorkCover

If you are suffering from a psychological condition or injury as a result of work, it's possible that you may be entitled to workers compensation.

A successful psychological injury claim requires you to show that your employment was a ‘significant contributing factor’. This means that your injury must be causally connected to your employment. This is in line with the requirements of the Workers' Compensation and Rehabilitation Act 2003 (“WCRA”) and is one of the things considered when WorkCover decides your claim.

Unlike physical injuries, psychological injuries are more difficult to seek damages for. Most WorkCover Applications for such injuries are rejected as the extent of physical injuries are usually reasonably simple to assess with x rays and observable symptoms of pain and restriction, etc.

Psychological injuries can be much more complex. These injuries may be a result of just one cause such as your employers’ behaviour towards you or it may be a result of a number of different things in a person’s life.

QLD LEGISLATION

The WCRA sets out the definition of “injury”. For a physical injury, the employment must be a significant contributing factor to the injury, but for a psychological condition, the test is more stringent because of the exclusionary provisions under Section 32 (5), which provides that:

“injury” does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances —

• reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
• the worker’s expectation or perception of reasonable management action being taken against the worker;

REASONABLE MANAGEMENT ACTION

The employer may suggest that their action against you was “Reasonable Management Action”. This is defined in the WCRA as behaviour that meets the following elements:

• the behaviour must be management action;
• it must be reasonable for the management action to be taken; and
• the management action must be carried out in a manner that is reasonable.

Whether management action is reasonable in the circumstances of your case can be difficult to assess, especially if you have been seriously impacted by it. For example, Reasonable Management Action may include but is not limited to the following:

• performance appraisals;
• ongoing meetings to address underperformance;
• counselling or disciplining a worker for misconduct;
• modifying a worker’s duties including by transferring or re-deploying the worker;
• investigating alleged misconduct;
• denying a worker a benefit in relation to their employment; or
• refusing an employee permission to return to work due to a medical condition.

In contrast, behaviour such as, but not limited to, the following will not be considered Reasonable Management Action:

• workplace bullying or harassment;
• witnessing a workplace accident;
• dealing with traumatic or sensitive issues at work, such as treating patients suffering illness or helping people deal with bereavement (death of a loved one);
• being the victim of a violent crime at work;
• unlawful discrimination;
• unreasonable management action, like demoting you for raising a workplace safety issue.

WHAT MAKES A SUCCESSFUL CLAIM

A successful claim with WorkCover often relies on the following:

1. a detailed written record of any and all incidents, correspondence or documents that have contributed to the decline in your mental health and developing this injury;
2. evidence from any witnesses to the incidents that have caused your injury or can support your WorkCover claim;
3. medical reports, records and progress notes.

Applicants can often make the mistake of failing to provide enough information to WorkCover. This means that WorkCover cannot adequately investigate the reported incident which leads to rejection of the application.

STEPS TO TAKE

If you suffer a psychological injury at work, you should take the following steps:

1. See your doctor immediately or go to the hospital immediately for initial treatment.
2. Obtain a work capacity certificate from your treating doctor to confirm the injury is work-related.
3. Let your direct supervisor at work know what has happened as soon as you can and give them your work capacity certificate.
4. Lodge a claim with WorkCover and provide to them a copy of your work capacity certificate as WorkCover can only provide support from the date your doctor first assessed your injury.
5. If you are successful, begin rehabilitation as soon as you can. This will help your recovery and your employer is obligated to help you with this.
6. Obtain a copy of any reports and any statement you provide, relating to your injury. You can then seek our assistance and provide us with copies of same.

HOW WE CAN HELP

The Compensation Team at Wallace & Wallace Lawyers are experienced in all aspects of Workers Compensation legislation and Employment Law.

If you or someone you know has been injured at work or is unhappy with a decision of WorkCover, or you want a second opinion, call us now on (07) 4963 2000 or contact us via our online contact form for practical legal advice on how you should proceed. We can assist.