Published: 23 August 2019
Author: Kellie Knowles
Requirements for getting a WorkCover claim accepted for psychological injury
Getting a WorkCover claim accepted for a psychological injury can be challenging. Here’s what’s required to have your claim accepted and what to expect when you lodge a claim.
Recognised psychological injury
To have your WorkCover claim accepted, you must be found to have a work-related mental health condition, such as anxiety, depression, adjustment disorder or post-traumatic-stress disorder. Work stress, on its own, as tough as it may be, is not enough to make a claim.
Significant contributing factor test
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. The same test applies to pre-existing physical injuries. The courts have interpreted ‘significant’ in ‘significant contributing factor’ to mean of ‘considerable amount or effect’. In deciding if work is a ‘significant contributing factor’, the courts consider the length and type of employment, work duties, the likelihood of the injury occurring regardless, hereditary risks, lifestyle and activities outside of work.
Reasonable management action defence
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. The definition of management action is very broad, but it includes performance reviews, suspension, reclassification and dismissal of workers. The onus is on the employer to show that its management action was taken on reasonable grounds and in a reasonable manner. If the employer proves it acted reasonably, to onus switches to the worker to show their injury was not caused wholly or predominantly by the management action but by other work factors.
Lodging a claim and what happens after that
When filling out the claim form you will need to explain how your psychological injury is work-related. List all of the work stressors that you believe caused your injury. If referring to specific events, include dates and the names of any persons involved.
Once you lodge the claim, the insurer normally has 28 days from the date it receives the claim to decide whether to accept it or not. You will need to provide a Certificate of Capacity from your doctor to claim weekly payments.
In these cases, it is very common for the worker to be required to attend an examination with an independent psychiatrist to verify they have a work-related psychological condition and to get an opinion about work capacity and treatment.
In many cases, the insurer will also appoint an investigator to investigate the claim and speak to the worker, the employer and any 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.
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 about your chances of having the claim accepted.
If you would like to talk to a legal expert about your eligibility to make a WorkCover claim for a psychological injury please call us on 1300 366 441 to arrange a free first consultation.