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Getting a WorkCover claim for Psychological or stress injury accepted

Getting WorkCover to accept a claim for a psychological injury can be challenging, even as psychological injury claims are spiking as a result of working under the pressures of COVID-19.

However, successful psychological injury claims may be made against WorkCover’s no-fault scheme, or through a Common Law claim where negligence is involved.

Here’s what is required to have your claim accepted and what to expect when you lodge a claim.

To make a successful psychological injury claim, you must first:

  1. Prove to WorkCover that you have a work-related medical mental health injury, 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.)
  2. Establish that the job was the cause of your injury.
  3. Notify your employer with 30 days of the injury occurring.

COVID-19 and psychological injury

There are increasing psycho-social hazards for workers in Victoria where lockdowns have led to protracted stretches of working at home or under unprecedented levels of stress. Poor management support and communication can exacerbate the effects of isolation or increasing work demands.

Those who work in logistics or as delivery drivers might also be put under heavier working hours. And of course, there are those who work in the health and caring industry who may face the risk of exposure to the virus without proper personal protective equipment.

Despite the pressures under which companies and organisations now find themselves, the Victorian Workplace Health and Safety laws make it clear that employers must eliminate or minimise work-related risk to psychological health and safety so far as is reasonably practicable.

If you consider that changed workplace practices have unduly contributed to your mental stress to the point of causing injury, you should contact one of our WorkCover injury lawyers for advice. (For further information about preventing psychological injury at work during COVID-19, download the Preventing psychological injury at work during COVID-19PDF from the Safe Work Australia website.)

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 he or she 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.

Typical types of unreasonable management action include:

  • Bullying and harassment
  • Lack of procedural fairness
  • An excessive workload, and
  • Lack of relevant training.

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 they receive 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.

Provisional access from 1 July

From the 1 July 2021 workers who claim mental injury can access provisional payments of reasonable medical treatment whilst the claim is being assessed.

These payments for medical treatment for WorkCover claims are available for 13 weeks. Payments can continue beyond 13 weeks if the claim is ultimately accepted.