Published: 10 September 2018
Author: Kellie Knowles
Requirements of a WorkCover claim for psychological injury
Claiming compensation for psychological injury has distinct challenges. In this blog, the first in a series, we look at the difficulties that can arise when lodging a WorkCover claim for psychological injury.
Recognisable psychological injury
Just being stressed at work, as difficult as that may be, is not enough to have your WorkCover claim accepted. You must show you have a recognised psychological injury that is caused by work and, to claim weekly payments, prevents you from working.
When completing the Worker’s Injury Claim Form, you need to be specific about the psychological injury you have suffered at work, and this should match the diagnosis your doctor has provided on your Certificate of Capacity.
Insurers generally send workers to an independent medical examiner, normally a psychiatrist, to have their condition assessed. If the assessor does not consider you have a recognised injury, despite what your own doctors say, this is a reason for the insurer to reject your claim.
Significant contributing factor
If you already have a pre-existing psychological injury and events at work make it worse, to be entitled to compensation, you must show that your work was a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration of your pre-existing condition.
The courts have interpreted ‘significant’ to mean ‘of considerable amount of effect’, and this can differ from case to case, depending on the facts.
When deciding if work is a significant contributing factor to a psychological injury, the courts must consider how long you have worked for the employer, the nature of your job, the tasks you had to perform, the likelihood of the injury having occurred regardless of work, hereditary risks, your lifestyle, and your activities outside of work.
Reasonable management action defence
Where a lot of psychological injury claims run into bother is when the injury is found to mostly result from reasonable management action taken by the employer. This is a complete defence to a claim.
Management action is a complex area, worthy of its own blog, but the key things to know are that:
- The definition of management action is very broad;
- The onus is on the employer to show that its management action was taken on reasonable grounds and in a reasonable manner; and
- If the employer is successful in showing it acted reasonably, to have their claim accepted, the worker must show that their injury was not caused wholly or predominantly by the management action.
This leads to another issue: be sure to explain, as best you can, which stressors at work caused your injury on the Worker’s Injury Claim Form (use an extra piece of paper if needed). This can help identify management action that may be considered unreasonable and other stressors, outside of management action, which may have caused injury.
The timing of events can be critical in these cases. If referring to specific events, include dates and the names of any persons involved.
If your claim has been rejected, you will need to request conciliation, as a first step, to challenge the decision. We recommend you seek legal advice.