Workplace Stress: Understanding WorkCover Psychological Injury Claims

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It’s not surprising that WorkCover claims for psychological injury are increasing. In fact, we would expect them to continue to increase as awareness and acceptance of mental health conditions grows in our community. In the past the stigma of mental health was clearly a barrier to claiming WorkCover entitlements, but I am pleased to see the tide turning and more people addressing workplace psychological injuries.

What do you have to prove?

1. Workplace stress is awful but “stress” is not a recognised psychological condition. You have to prove you have suffered a mental health injury, such as anxiety, depression, adjustment disorder or post-traumatic stress disorder. Obviously it can be stress that leads to you suffering one of these injuries/conditions.

2. You must establish that your employment was the cause of your mental health injury/condition.

3. You must notify your employer within 30 days of the injury occurring.

Practicalities: How to commence your WorkCover claim

1. Notify your employer that you have suffered an injury (incident report).

2. Complete a WorkCover Claim for Compensation form, which can be found at  https://www.worksafe.vic.gov.au/resources/workers-injury-claim-form. Consider getting legal advice to assist you to complete the claim form.

3. Obtain a Certificate of Capacity from your GP if you need time off work and lodge this with your WorkCover Claim Form.

What causes Psychological injury at work?

Most commonly the pressures that lead to psychological claims include:-

- Dealing with difficult colleagues;

- Unreasonable expectations in terms of work volume;

- Lack of support in positions that involve a high amount of stress;

- In recent times, pressure and safety concerns relating to Covid 19.

Unfortunately, workers often suffer in silence and do not record the symptoms and circumstances with their doctor at an early stage. They instead battle on, while their work often deteriorates due to the stress. That deterioration in their work leads to management taking action, with this action often what tips the worker over the edge and prompts them to make a claim for psychological injury.

Reasonable Management Action Defence

It is important to understand that you cannot claim compensation if your psychological injury is caused wholly or predominately by management action found to have been taken on reasonable grounds, and conducted in a reasonable manner. This is known as the ‘reasonable management action’ defence, and it can completely defeat a worker’s claim.

WorkCover insurers have come to rely upon this defence more and more.

The definition of management action is very broad, but it includes:

• Appraisal of the worker’s performance;

• Performance reviews;

• Counselling of the worker;

• Suspension or stand down;

• Disciplinary action;

• Reclassification or transfer of the worker’s employment;

• Dismissal of worker.

If the employer proves he or she acted reasonably, it is up to the worker to show their injury was not caused wholly or predominantly by the management action but by other work factors.

Typical types of unreasonable management action include:

• Bullying and harassment;

• Lack of procedural fairness;

• An excessive workload; and,

• Lack of relevant training.

How to improve your chance of success

There are a few steps you can take to protect yourself and strengthen your case if you are suffering workplace stress and think you may need to lodge a WorkCover Claim in the future if the situation doesn’t improve.

1. Inform management of your stress and the cause (preferably in writing);

2. Keep a diary of complaints you and others have made regarding circumstances leading to your stress;

3. If you are suffering illness due to work, lodge an incident report or put your employer on notice by sending your manager or HR an email (keep a copy for your records);

4. Make sure you see your GP so they also make note that you are suffering from work related stress;

5. If you see any other practitioners for stress-related tension or headaches, for instance a chiropractor, osteopath, physiotherapist, naturopath, acupuncturist or similar, make sure they also record that you feel the physical issues are being caused by workplace stress.

I’m concerned I have a pre-existing condition

If you have a pre-existing psychological condition the ‘significant contributing factor’ test also applies.

To receive compensation, your work must be found to be a ‘significant contributing factor’ to the recurrence, aggravation, acceleration, exacerbation or deterioration of your pre-existing psychological condition.

In deciding if work is a ‘significant contributing factor’, consideration is given to the length and type of employment, work duties, the likelihood of the injury occurring regardless, hereditary risks, lifestyle and activities outside of work.

What will happen after you lodge your claim

1. The WorkCover agent/insurer will contact you via phone and/or email;

2. They will provide you with a claim number via email which will allow you to claim medical expenses;

3. It is likely you will be required to attend an examination with an independent psychiatrist to verify you have a work-related psychological condition and to get an opinion about work capacity and treatment;

4. Usually the WorkCover agent/insurer will also appoint an investigator to investigate the claim and speak to you, your employer and key witnesses. A worker’s participation in the investigation is voluntary. If the insurer asks you to speak to an investigator, we recommend you seek legal advice before doing so.

5. A decision will be made whether your claim should be accepted or rejected. You will receive a written decision with reasons.

If your claim is rejected, you will need to request conciliation, as a first step, to challenge the decision. If you haven’t already, this is a good time to seek legal advice.

Provisional access from July 1, 2021

From July 1, 2021 workers who claim mental injury can access early treatment and support while they await the outcome of their claims (referred to by WorkCover as “provisional payments”).

These provisional payments are an attempt to improve support for those who have suffered work-related mental injuries, by aiding recovery with access to early treatment in hope of quicker return to work.

Once you lodge a claim for work-related mental health injury, the right to receive provisional payments will be determined within five business days of lodgement.

Payment for medical treatment such as consultations with your GP, a psychologist and a psychiatrist are available for 13 weeks together with costs of medication and travel for treatment. Payments can continue beyond 13 weeks if your claim is ultimately accepted. If your claim is rejected you do not have to repay the medical expenses funded by WorkCover.

Please note there may be a ‘gap’ between the amount charged by the provider and the payable amount under WorkSafe’s schedule of fees, and expenses such as travel may need to be pre-approved beforehand.

Legal Advice is important

The process can seem daunting and there is a lot of information contained in this blog, which highlights how complicated these matters can be. By seeking legal advice at an early stage you can reduce the stress of claiming by having a lawyer explain how the law applies to your particular circumstances.

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